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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A.     TREATISE 


ON 


THE    LAW 


OF 


CONDITIONAL  SALES 


or 


PERSONAL  PROPERTY 


BY 

®HARLES     Ti.     MILLER 

I'  I 

Canton,  Ohio 


CINCINNATI 

ROBERT  CLARKE  &  00 

1888 


BOBERT  CLARKE  &  CO. 
1888. 


T 


^ 


PREFACE. 


It  has  been  my  object,  in  producing  this  work,  to  present 
a  comparatively  modern  branch  of  the  law  in  a  new  way ; 
that  of  bringing  together,  for  more  ready  reference,  cases 
similar  in  point  of  law  and  fact.  The  exact  language  of 
the  courts  has  been,  in  many  instances,  used  in  prefer- 
ence to  that  of  the  author,  with  the  view  of  making  the 
text  not  only  authoritatively  correct,  but  brief  and  concise. 
The  work  is  submitted  to  the  judgment  of  a  candid  and 
busy  profession,  with  the  hope  that  whatever  demerits 
may  mar  the  execution  of  the  undertaking,  will  be  more 
than    counterbalanced    by   the    advantages    incident    to   the 

plan  adopted. 

CHARLES  R.  MILLER. 

Canton,  0.,  October,  1888. 

(iii) 


735434 


CONTENTS. 


PART  FIRST. 


GENERAL   REQUISITES  OF   CONTRACTS  OF  SALB. 


CHAPTER  I. 

Essential  Elements  of  Sale. 

Article  1. — Definition  and  Elements  of  Sale. 

1.  Definition,   .........  3 

2.  Competent  Parties,  ......  3 

3.  Mutual  Assent, 5 

4.  Subject  of  Sale, 6 

5.  Consideration, 6 

6.  Transfer  of  Property, 7 


CHAPTER  H. 

Elements  Required  by  Statute. 
Article  2. — Statute  of  Frauds. 

§    7.  Statutory  Provisions, 

§    8.  Affects  Remedy  Only, 

§    9.  Application,  ..... 

§  10.  Acceptance  of  Goods, 

§  11.  Constructive  Acceptance,     . 

§12.  Earnest  and  Part  Payment,      . 

§  13  Form  of  Memorandum, 

§  14.  Parties  to  ^Memorandum, 

§  15.  Price  Designated  in  Memorandum, 

§  16.  Signing  of  Memorandum, 


8 

10 
11 
14 

16 
18 
19 
21 
21 
23 


(▼) 


vi  Contents. 


PART  SECOND. 


GENERAL  PRINCIPLES  OP   CONDITONAL  SALES. 


CHAPTER   III. 

Conditions  Precedent  to  be  Performed  by  the  Vendor. 

Article  3. — Conditions  Precedent. 

§  17.  Intent  Governs, 27 

§  18.  Conditions  Must  be  Performed,          ....  27 

Article  4. — Conditions  to  be  Performed  by  the  Vendor. 

§  19.  Rules  Governing, 28 

§  20.  Avoidance  of  Conditions,  .....  29 

Article  5. — Conditions  Necessary  to  Put  in  a  Deliverahle  State. 

§  21.  Separation,  ........  30 

§  22.  Measurement, 3j 

Article  6. — Delivery. 

§  23.  Delivery — Question  of  Intent, 33 

§  24.  Symbolical,  or  Constructive  Delivery,        ....  34 

§  25.  Delivery  to  Carrier,      .......  36 

§  26.  Delivery  of  More  or  Less  than  Contracted  for,  .  37 

§  27.  Time  of  Delivery,         .......  38 

§  28.  Place  of  Delivery, 41 

§  29.  Estoppel,  Delivery  by, 42 

Article  7. — Saks  by  Description. 

§  30.  Delivery  of  Described  Article,  Essential,  .        .  43 

CHAPTER  IV. 

Conditions  Precedent  to  be  Performed  be  the  Vendee. 

Article  8. — Implied  Conditions. 

§  31.  Acceptance  not  an  Implied  Condition,  .         .         .46 

§  32.  Payment, 47 

^  33.  Cash  Payment, 48 


Contents.  vii 

§  34.  Payment  by  Check  or  Draft,         .         .         .         .         .50 

§  35.  Payment  by  Note, 52 

§  36.  Tender, 54 

§  37.  To  Whom  Payment  Can  be  Made,  ...          56 

Article  9. — Express  Conditwns. 

§  38.  Sale  on  Trial  or  Approval, 58 

§  39.  Memorandum  Sales, 59 

§  40.  Payment — Delivery  Without, 60 

§  41.  Special  Cases,  .......  65 

§  42.  Railroad  Equipment,  70 

§  43.  Statutory  Requirements, 77 

CHAPTER  V. 

Conditions  Subsequent. 
Article  10. — Express  Gonditiom. 

§  44.  Sale  or  Return, 81 

§  45.  Sale  of  Goods  to  Arrive 82 

AHicle  11. — Implied  Conditions. 
§  46.  Shall  be  Manufacturer's  own  Make,       .        .        .         .85 

CHAPTER  VI. 

Incidents — Warranties. 

Article  12. — Implied  Warranties. 

§  47.  Implied  Warranty 86 

§  48.  Warranty  of  Title, 88 

I  49.  Warranty  of  Quality, 90 

§  50.  Sale  by  Sample, 92 

§  51.  Sale  by  Description, 94 

§  52.  Sale  for  Special  Purpose, 95 

§  53.  Merchantable  Character, 99 

§  54.  Soundness, 101 

AHicle  13. — Express  Warranties. 

§  55.  What  Amounts  to  a  Warranty,  ....  103 
§  56.  What  Does  Not  Amount  to  a  Warranty,  .  .  .  105 
§  57.  Effect  of  Warranty, 112 


viii  Contents. 

%  58.  Breach  of  "Warranty,  and  Rescission,     .  .         .         .115 

§  59.  When  Action  Lies  for  Breach,            .  .         .         .        11  < 

§  60.  AVhen  Action  Does  Not  Lie  for  Breach,  .         .         .  118 

§  61.  Measure  of  Damages.      ......  120 

Article  14. — Spedal  Gases. 

§  62.  Warranties  of  Agricultural  Implements,  .        .        -    122 


TABLE   OF  CASES. 


Abat  V.  Atkinson,  §  2'2,  note  1 
Abbott  V.  Johnson,  g  ")7,  n.  4 

V.  ,  g  62,  n.'32 

V.  Gilchrist,  g  ',»,  n.  13 

V.  Shephard,  §  M,  n.  2 

Acker  v.  Campbell,  §  32,  n.  3 

V.  Kimme,  §  62,  n.  25 

Adams  v.  Foley,  §  24,  n.  2 

V. ,  §  24,  n.  7 

v.  Johnson,  §  56,  n.  1 

V.  Nichols,  §  20,  n.  3 

V.  O'Connor,  §  32,  n.  3 

Mining  Co.  v.  Senter,  §  22,  n. 

10 
Aiken  v.  Hyde,  §  38,  n.  3 
Airey  v.  Okolona  Sav.  Inst.,  §  37, 

n.  5 
Aitcheson  v.  Cook,  §  19,  n.  2 
Albany  Dutch  Church  v.  Bradford, 

§  18,  n.  1 
Alexander  v.  Gardner,  §  25,  n.  2 
Allen  V.  Bennet,  g  14,  n.  3 

V.  Goodenow,  §  4,  n.  1 

V.  Jarvis,  ^  9,  n.  12 

Amer.  Merchants  Exp.  Co.  v.  Milk, 

§  37,  n.  5 
Amson  v.  Dreher,  J  10,  n.  7 
Andenried  v.  Randall,  §  24,  n.  2 
Anderson  v.  Harold,  §  16,  n.  7 
Appleton  V.  Norwalk  Library  Co., 

§  40,  n.  24 
Archdale  v.  Moore,  §  52,  n.  1 

V.  ,  §  60,  n.  6 

Archibald  v.  Argoll,  §  35,  n.  2 
Argus  Co.  V.  Mayor  of  Albany,  §  13, 

n.  8 
Armington  v.  Houston,  §  33,  n.  1 

V.  ,  §  40,  n.  1 

Armitage  v.  Insole,  §  19,  n.  2 
Artcher  v.  Zeh,  §  12,  n.  3 
Ashcroft  V.  Morrin,  §  15,  n.  5 
Atkins  V.  Boylston,  §  27,  n.  4 
Atkinson  v.  Mailing,  §  24,  n.  3 

V.  Ritchie,  §  28,  n.  1 

Attwood  V.  Clark,  g  27,  n.  1 
V. ,  g  44,  n.  4 


Atwood  V.  Cobb,  §  15,  n.  4 

V. ,  §  15,  n.  9 

V, ,  I  23,  n.  4 

V.  Lucas,  g  10,  n.  8 

Aultman  v.  Kennedy,  §  56,  n.  4 
,  Miller  <k  Co.  v.  iStichler,  §  62, 

n.  16 

V.  Stout,  §  62,  n.  44 

V.  Theiver,  §  38,  n.  2 

V.  Wheeler,  §  62,  n.  37 

,  Tavlor  &  Co.  v.  Hefner,  §  62^ 

n.  35 
Austin  V.  Dye,  §  33,  n.  10 

V. ,  §  40,  n.  1 

Avendale  v.  Morgan,  §  2,  n.  3 


B. 


Babcock  v.  Trice,  ^  53,  n.  2 
Bacon  v.  Conn,  §  36,  n.  II 
Bailey  v.  Harris,  §  40,  n.  1 

V.  Nichols,  g  54,  n.  1 

V.  Ogden,  §  11,  n.  3 

V.  Smith.  §"l9,  n.  1 

Bakeman  v.  Pooler,  §  36,  n.  2 
Baker  v.  Arnot,  §  48,  n.  14 
Baldery  v.  Barker,  §  11,  n.  8 
Baldwin  v.  Tucker,  §  24,  n.  3 

V.  Williams,  §  9,  n.  3 

Ballard  v.  Burgett,  §  33,  n.  8 

V.  ,  'd  33,  n.  10 

V.  ,  g  40,  n.  1 

Baldwin  v.  Daniel,  §  56,  n.  14 
Bank  v.  Crocker,  §  24,  n.  6 

V.  Dearborn,  §  24,  n.  6 

V.  Gridley,  g  24,  n.  7 

V.  Purdy,  §  41,  n.  7 

of   Peoria  v.  Railroad,  3  24, 

n.  4 
Barrett  v.  Deere,  §  37,  n.  6 
Basford  >\  Pearson,  §  8,  n.  1 
Bass  V.  White,  ^  ;^.2,  n.  5 
Bateman  v.  Phillips,  ^  14,  n.  4 
Bates  V.  Ball,  (3  2,  n.  4" 
Batturs  v.  Sellers,  §  13,  n.  4 
(ix) 


Table  of  Cases. 


Barickman  v.  Kuykendall,  §   13, 

n.  3 
Barker  v.  Parkenhorn,  §  36,  n.  3 
Barnard  v.  Yates,  g  54,  n.  1 
Barnes  v.  Boomer,  §  27,  n.  2 
Barnett  v.  Stanton,  g  49,  n.  8 
Barney  v.  Patterson,  §  13,  n.  6 
Barry  v.  Coombe,  §  13,  n. 

V. ,  §  16,  n.  4 

Barstow  v.  Gray,  §  16,  n.  1 
Bartholomew  v.  Warren,  §  2,  n.  3 
Bartlett  v.  Hoppock,  §  53,  n.  7 
Barton  v.  Flaherty,  §  48,  n.  6 
Baum  V.  Stevens,  §  55,  n.  9 

V.  ,  §  56.  n.  12 

Bauendiihl  v.  Horr,  §  33,  n.  3 
Bayliss  v.  Hennessey,  §  57,  n.  4 

V. ,  §  62,  n.'32 

V. ,  §  62.  n.  15 

Beals  V.  Olmstead,  §  30,  n.  5 

V. ,  a  52,  n.  18 

V.  ,  I  55,  n.  1 

Bean  v.  Edge,  §  33,  n.  1 
Beane  v.  Tinkham,  §  59,  n.  9 
Bearce  v.  Bovvker,  §  2,  n.  1 
Beardsley  v.  Horton,  §  41,  n.  7 
Beazeley  v.  Mitchell,  §  2,  n.  2 
Beebe  v.  Johnson,  §  20,  n.  3 
Beers  v.  Williams,  §  52,  n.  2 
Behaly  v.  Hatch,  §  36,  n.  5 
Beirne  v.  Dord,  §  49,  n.  3 
Bellows  V.  Smith,  §  36,  n.  10 
Beltv,  Marriott,  §  11,  r.  14 
Benedict  v.  Field,  §  45,  n.  5 
Bennett  v.  Bartlett,  §  48,  n.  1 

V.  Nye,  §  9.  n.  13 

V.  Simms,  g  33,  n.  1 

V. ,  §  40,  n.  1 

Beresford  v.  McCune,  §  61,  n.  I 
Berine  v.  Dord,  §  50,  n.  4 
Bermen  v.  Woods,  §  56,  n.  5 
Bertram  v.  Lyon,  §  55,  n.  14 
Bethel  Steam  Mill  Co.  v.  Brown,  § 

23,  n.  1 

V.  ,  §  24,  n.  2 

v.  ,  ^  24,  n.  7 

Bickley  v.  Kunan,  §  16,  n.  3 
Bigelow  V.  Hun  I  ley,  g  33,  n  1 

V.  ,  g  40,  n.  1 

Bigge  V.  Parkinson,  §  52,  n.  4 
Bigler  v    Flickinger,  {J  56,  n.  10 
Bigole  V.  McKenzie,  §  22,  n.  10 
Bill  v.  Bament,  g  11,  n.  8 
Birdu.  Mayor,  ?'52,  n.  18 

V.  Muhlenbrink,  g  9,  n.  14 

Birdsall  v.  Carter,  ?61,  n.  1 
Birdseye  v.  Frost,  g  47,  n.  13 
Blair  v.  Wilson,  §  34,  n    1 


Blake  v.  Crowningshield,  §  27,  n.  3 
Blakeman  v.  Makay,  §  55,  n.  1 
Blanchard  v.  Child,  §  33,  n.  1 

y.  _  g  40,  n.  I 

V.  Cooke,  §  40,  ii.  7 

Blight  V.  Ashley,  §  36,  n.  3 
Blood  V.  French,  §  48,  n.  14 
Boardman  v.  Spooner,  §  16,  n.  5 
Bock  V.  Healy,  §  27,  n.  9 
Boggs  V.  Fowler,  §  2,  n.  3 
Bolton  V.  Riddle,  §  23,  n.  5 
Bond  V.  Clark.  §  56,  n.  12 
Boon  V.  Moss,  §  40,  n.  1 
Booraem  v.  Crane,  §  33,  n.  1 
Boothby  v.  Scales,  f  47,  n.  8 

V.  - — ,  g55,  n.  12 

V. ,  §  55,  n.  39 

Booth  V.  Rolling  Mill  Co.,  §  20,  n.  3 

V.  Wiley,  §  37,  n.  5 

Borden  v.  Borden,  §  19,  n.  2 

V. ,  §  36,  n.  4 

Borrekins «..  Bevan,  §  30,  n.  5 

V.  ,  §  53,  n.  4 

Borrowscale  v.  Bosworth,  §  11,  n.  1 
Boss  V.  Veltum,  §  5,  n.  2 
Bourland  v.  Peoria,  §  13,  n.  5 
Bowers  v.  Anderson,  §  9,  n.  6 

V.  ,  I  10,  n.  3 

V. ,  I  10,  n.  5 

Bowman  v.  Clemmer.  §  49,  n.  1 
Boyd  V.  Crawford,  §  52,  n.  2 

V.  Whitfield,  I  54,  n.  2 

Boyle  V.  Agawam  Canal  Co.,  §  20, 

n.  3 
Boynton  v.  Veazie,  §  11,  n.  2 

y_ ,  g  24,  n.  2 

Brackett  v.  Norton,  §  37,  n.  3 
Bradford  v.  Bush,  §  55,  n.  9 

V.  Manly,  §  30,  n.  5 

V. ,  §  50,  n.  1 

V. ,  §  59,  n.  1 

Bradley  v.  Wheeler,  §  22,  n.  11 

V. ,  §  25,  n.  4 

Bradshavv  v.  Thomas,  §  40,  n.  1 

V.  Warner,  g  40,  n.  1 

Bragg  V.  Morrill,  §  54,  n.  3 
Braley  v.  Kelly,  §  16,  n.  5 
Branch  v.  Burnley,  §  37,  n.  2 
Brandon  Mfg.  Co.  v.  Morse,  §  32, 

n.  4 
Brawley  v.  United  States,  §  26,  n.  10 
Breed  v.  Hurd,  ^  36,  n.  5 
Bremer  v.  Mich.  Salt  Asso.,  §  22, 

n.  10 
Breton  v.  Davis,  g  52,  n.  2 

y_  _  g  52,' n.  18 

Bresford  v.  McCume,  §  59,  n.  5 
Brewster  v.  Baker,  §  29,  n.  5 


Table  of  Cases. 


xl 


Brickenbridge  v.  McAflFee,  §  2,  n.  2 
Bristol  V.  Tracoy.  §  57,  ii   4 
Brigg  V.  Hilton  §  55,  n   24 

V.  ,  g  57.  n.  9 

Brigham  v.  Maxey  g  48,  n.  14 
Brinly  v.  Spring,  g  24  n  3 
Bronson  v.  Winian,  §  9,  n.  12 
Brookly   Bank  v.  De  Grauw  §  36, 

n.  II 
Brown  v.  Bellows,  §  5,  n.  2 

V.   ,  §  15,  n   3 

V.   Burhaus,  §  47,  n.  12 

('.   Edgerton,  g  52,  n.  1 

V.   Edgington,  §  52,  n.  1 

-;.    Foster,  §  18,  n.  1 

0.  Gilmove,  g  36,  n.  2 

V.  ,  2  36,  n.  11 

V.   Haynes,  §  33,  n.  1 

V.  Johnson,  'i  '11,  n.  3 

V.  Murphie  g  52,  n.  1 

V    ,  \  52.  n.  4 

V    I  52,  n.  5 

V.  Savles  §52.  n.  9,  n.  18 

V   — -,  §  53  n.  9 

Browning  v.  Hamilton,  §  21,  n.  1 
Bruce  v.  Bishop,  §  3,  n.  2 
Brud  V.  Hurd,  §  36,  n.  2 
Brunskill  v.  Mair,  §  23,  n.  5 
Bryant  v.  Crosby.  §  55,  n.  1 

V.  Pember,  §  49,  n.  1 

V.  Sears,  g  30.  n.  5 

V.  Whitcher,  §  2,  n.  1 

V. ,  §  2,  n.  3 

Buck  V    Pickvvell,  §  15  n  8 
Buckingham  v.  Osborne  §  10,  n.  7 
Buchman  v.  Levi.  §  25  n.  2 
Buchmaster  v.  Smith,  §  33,  n,  I 

V.  .  I  40,  n.  1 

Buck  nam  v.  Goddard,  §  48,  n.  1 
Budlong  V.  CottrpU,  §  35,  n.  1 

V.  .  §  40,  n.  19 

BuflFum  V.   Butfum,  §  36,  n.  11 

V  Merry,  g  44,  n.  3 

Bunker  v.   McKenney,  §  33,  n.  1 
Burbank  v.  Crooker,  §  33,  n.  1 
Burge  V.  Stroberg,  §  59,  n.  2 
Burt  V.   Dewey,  g  48,  n,  1 
Burton  v.  Baird   ?  25,  n.  4 
Bush  V    Holmes  g  10,  n.  8 

V   §  10  n.  7 

Bushel   V    Wheeler  §  11,  n.  1 
Bushwel'  V.   Bicknell,  §  44.  n.  3 
Butler  V.  Moore,  g  61,  n.  10 

V.  Thompson,  §  3,  n.  1 

V.  Tufts,  §  48.  n.  1 

Buttrick  v.  Holden,  §  27,  n.  3 
Byer  v.  Elnyer,  §  23,  n.  2 


Byers  v.  Chapin,  g  52,  n.  18 

V. ,  g52,'n.  20 

Byrne  v.  Jansen,  g  49,  i/.  2 

V.  ,  g  49,  n   7 

Byrnside  v.  Burdett.  g  48,  n.  2 
'V.  ,  g  48.  n.  8 


c. 


Cahill  V.  Smith,  §  59  n.  12 
Cahen  v.  Piatt.  §  30,  n.  8 

V.  ,  §  44,  n.  3 

Calcock  V.  Keid,  g  54,  n.  1 
Calcutt  V.  Kuttan  g  24,  n.  7 
Calcutta  and  Burmah  Steam  NaT. 

Co.  V.  De  Motts,  g  45,  n.  2 
Caldwell  v    Ball,  g  45,  n.  2 

V.  Smith,  g  49,  n.  49,  n.  3 

Call  V.  Seymour,  Sabin  &  Co.,  §  40 

n.  1 

u.  ,  g  41,  n.  4 

Callaghan  v.  Myers,  g  5,  n.  1 

V. ,  g  17,  n.  4 

Calvin  u.  Williams,  g  9,  n.  4 
Cameron  v.  Dinglev,  g  27,  n.  1 

V.  Wells,  §27,' n.  1 

Camidge  v.  Allenby,  g  35,  n.  5 
Canter  v.  Hojikins,  g  47,  n.  2 
Canton    Bank   v.    McCann,    g   62 

n.  7 
Carley  v.  Wilkins,  §  55,  n.  16 
Carondelet  Iron  Works  v.  Moore, 

g56,  n.   16 
Carpenter  v.  Scott,  g  40,  n,  20 
Carr  v.  Duvall,  g  3,  n.  2 
Carson  v.  Bailie,  g  49,  n.  1 
Carter  v.  Abbott,  g  55,  n.  28 

V.  Black,  g  55,  n.  2 

Carter  v.  Talcott,  g  37,  n.  4 
Carthy  v.  Nash,  g  10,  n.  7 
Cartwright  v.  Phoenix,  g  24,  n.  7 
Cary  v.  Bancroft,  g  36,  n.  10 
Case  V.  Seass,  g  34,  n.  5 
Cash  V.  Giles,  g  62.  n.  32 
Cashman  v.  Martin,  g  36,  n.  2 
Cason  V.  Chuly,  g  9,  n.  9 
Cassaboglow,  v.  Gibbs,  g  26,  n.  6 
Catchings  v.   Hacke.  g  51,  n.  2 
Caulkins  v.  Hellman,  g  11,  n.  12 
Chapin  v.  Patter  g  10.  n.  7 

V.  Rogt^rs,  g  1 1    n.  6 

V. ,  g  24,  n.  1 

Chapman  v    Murch,  g  56,  n.  1 

V.  Shepard,  g  23,  n   3 

Chamberlain   v.  Sleeper,  g  44,  n.  3 
Champlin  v.  Rowley,  g  26,  n.  9 
Chambers  v.  Crawford,  g  53,  n.  2 


Xll 


Table  of  Cases. 


Chambers  v.  Frazier,  §  3'2,  n.  3 
Champney  v.  Smith,  §  2,  n.  3 
Chancellors.  Wiggins,  §  48,  n.  1 

V. ,§4^- "3 

Chanter  v.  Itopkins,  §  30,  n.  4 

V.   Hopkins,  §  49,  n.  2 

§    ,  g  52,  n.  5 

Charlton  v.  H'ay,  §  48,  n.  3 
Chase  v.  Citv  of  Lowell,  §  13,  n.  7 
Chicago   Packing  Co..  u.  Tilton,  § 
49.  n.  4 

.,, ,  §  52,  n.  4 

r.  ,  1 53,  n.  3     _ 

Chouteaux  v.  Luch,  §  37,  n.  7 
Christy  r'.  Cummins,  g  58,  n.  5 
Churchill   v.   Merchant's  Bank,  § 

27,  n.  2 
City  Bank  v.  Tufts,  §  40,  n.  4 
Clayton  v  Hester,  §  40,  n.  1 
Clark  V.  Draper,  §  24,  n.  7 

V.  Hayvvard,  §  41,  n.  1 

V.  Rice,  §  18,  n.  1 

Clarke  v.  Ilutchins,  §  25,  n.  2 

V.  Westrope,  §  5,  n.  3 

Clew  V.  McPherson,  §  50,  n.  1 

y.  ,  §  53,  n.  8 

Clung  V.  Kelley,  §  23,  n.  2 
Coates  V.  Sangston,  §  23,  n.  5 
Cobb  V.  Arundell,  §  11,  n.  12 
Cocker  v.  Franklin  Hemp  Manu- 
facturing Co.,  §  23,  n.  5 

V.  Franklin,  §  44,  n.  5 

Coddington  v.  Goddard,  §  16,  n.  10 

V.  ,  §  16,  n.  7 

Coghill  V.  Boring,  §  58,  n.  5 
Coggill  V.  Railroad  Co.,  §  32,  n.  3 
Cohen  V.  Piatt,  §56,  n.  18 
Coil  V.  Willis,  g  32,  n.  3 
Cole  V.  Berry,  §  40,  n.  25 
Colton  V.  Wise,  §  38,  n.  1 
Combs  V.  Gordon,  g  2,  n.  3 
Comer  v.  Cunningham,  §  33,  n.  9 

V.  ,  §  33,  n.  10 

Comfort  V.  Kiersted,  §  22,  n.  11 
Commercial  Bank  v.  Gillette,  §  21, 

n.  1 
Commissioners  v.  Thompson,  §  56, 

n.  23 
Commonwealth  v.  Ray,  §  16,  n.  5 
Comstock  V.  Smith,  §  40,  n.  1 
Cougar  V.  Chamberlain,  §  55,  n.  38 
Conger  v.  Railroad  Co.,  {^  32,  n.  3 
Conner  v.  Henderson,  §  59,  n.  1 

. V.  .  g  59.  n.  3 

Conway  v.  Bush,  §  28,  n.  41 

V. ,  g  32,  n.  3 

Cook  V.  Anderson,  g  16,  n.  1 


Cook  V.  Drais,  §  27,  n.  4 

V.  - — -,  ^  27,  n.  5 

V.  Gray,  §  27,  n.  4 

V.  Logan,  §  21,  n.  1 

Coon  V.  Spaulding,  g  23,  n,  5 
Cooper  V.  Hall,  §  57,  n.  12 
Cooth  V.  Jackson,  g  15,  n.  3 
Copeland  v.  Bosquet,  §  33,  n.  1 
Cornell  v.  Moulton,  g  27,  n.  3 
Cort  V.  Railroad  Co.,  ^  19,  n.  2 
Cosgrove  v.  Bennett,  §  49,  n.  10 
Costigan  v.  Hawkins,  ^  48,  n.  11 
Courtney  v.  Boswell,  §  62,  n.  36 
Courtright  v.  Leonard,  §  22,  n.  1 
Cox  V.  Buck,  §  29,  n.  5 

•  V.  Jones,  §  23,  n.  5 

V.  Long,  §  30,  n.  2 

Cozzins  V.  Whit  taker,  §  54.  n.  2 
Crane  v.  Pratt,  g  32,  n.  7 
Crawford  v.  Wilson,  §  54,  n.  1 
Creighton  v.  Comstock,  §  26,  n.  10 
Crocker  v.  GuUifer,  §  44,  n.  3 

V.  New  London  R.  Co.,  §  3,  n.  2 

Crofoot  V.  Burnett,  §  22,  n.  11 
Croninger  v.  Cracker,  §  26,  n.  1 

y_ ,  g  26,  n.  2 

V.  ,  §  26,  n.  7 

V.  ,  I  27,  n.  7 

V.  Paige,  §  55,  n.  20 

Crookshank  v.  Burrell,  §  9,  n.  9 
Crooks  V.  Moore,  §  28,  n.  4 
Cross  V.  O'Donnell,  §  11,  n.  12 
Culkins  V.  llellman,  §  10,  n.  2 
Cunningham  v.  Ashbrook,  §  5,  n.  2 

V.  Ashbrook,  §  23,  n.  1 

V.  Hall,  §  52,  n.  2 

y_  ,  §  53,  n    2 

V.  Judson,  §  27,  n.  8 

Curran  v.  Burdsall,  §  57,  n.  7 
Currier  ?;.  Anderson,  §  11,  n.  7 
Curtis  V.  Cane,  §  2,  n,  1 
Currier  v.  Knapp,  §  40,  n.  1 
Curtis  V.  Cane,  §  2,  n.  2 
Cushman  v.  Jewell,  §  40,  n.  23 


D. 

Dale  V.  Stimpson,  §  11,  n.  2 
Dallard  v.  Potts,  §  11,  n.  6 
Dame  v.  Baldwin,  §  2,  n.  2 
Damon  v.  Osborne,  §  10,  n.  7 
Dana  v.  King,  §  18,  n.  1 
Danforth  v.  Walker,  §  10,  n.  8 
Dannefelser  v.  Weigel,  §  40,  n.  1 
Darden  v.  Lovelace,  §  3,  n.  1 
Dargons  v.  Stone,  §  50,  n.  4 


Table  of  Cases. 


xui 


Darst  V.  Brockway,  §  4S,  n.  1 
David  V.  Mi'eker,  §  56,  n.  7 
Davis  V.  Emery,  3  .'Jo,  n.  1 

V.  Bradley,  g  29,  n.  5 

V.  .  §  ;«,  n.  1 

V.  Burnett,  jJ  ")5,  n.  41 

0.  Eastman,  §  10,  n.  8 

y.  Lane,  §  H7,  n.  8 

V.  Moore,  j}  10,  n.  7 

y. ,  §  i'2,  n.  5 

t).  Robertson,  ^  9,  n.  8 

V.  Rowel  1,  §  9,'n.  8 

0.  Russell,  i  24,  n.  6 

.  Shields,  g  lo,  n.  8 

..  _  g   16,  n.  1 

V.  Smith,  g  48,  n.  3 

Sewing  Machine  Co.  v.  Mc- 

Ginnis,  §  3-'.  n.  4 
Dawes  v.  Peck,  g  11,  ii.  12 

V.  .  §  25,  n.  2 

Day  V.  Bassett,  g  17,  n.  3 

V.  Railroad  Co  ,  §  8,  n.  3 

Dayton  v.  Iloogleind,  §  49,  n.  12 

V.  ,  g  50,  n.  1 

Dean  v.  Mason,  g  54,  n.  2 

V.  ,  H^,  n-  1 

Dearborn  v.  Turner,  §  44,  n.  3 
De  Cordova  v.  Smith,  §  16,  n.  1 
Defenbaugh  v.  Weaver,  §  26,  n.  8 
Defiance  Machine  Works  v.  Tris- 

ler,  §  411,  n.  17 
Defreeze  r.  Trumper,  §  54,  n.  2 
De  Kidder  v.  Mc Night,  ?  23,  n.  2 
Delamater  v.  Chappel,  §  38,  n.  1 
Delaware  R.  R.  Co.  v.  Bowns,  §  20, 

n.  3 
De  Medeiors  v.  Hill,  §  28,  n.  1 
Deming  v.  Foster,  §  47,  n.  14 

y.  ,  g  49,  n.  2 

V.  ,  I  52,  n.  5 

V.  ,  f  55,  n.  37 

Dennett  v.  Dennett,  §  2,  n.  4 
Dennis  v.  Stoughton,  §  30,  n.  8 
Denny  v.  Williams,  §  11,  n.  2 

V. ,  ^  II,  n.  5 

V.  ,  I  10,  n.  6 

Dewey  v.  Erie  Borough,  §  38,  n.  2 

V. ,  §  5>i,  n.  8 

Dexter  V.  Bevins,  §  22,  n.  7 

V.  Norton,  §  20,  n.  3 

V. ,  §  22,  n.  11 

Dike  V.  Reitlinger,  §  45,  n.  5 

V.  ,  g  50,  n.  1 

Dickens  v.  Williams,  §  55,  n.  6 
Dickey  v.  Linscott,  g  20,  n.  1 
Dickinson  v.  Gay,  §  47,  n.  10 
V,  ,  2  50,  n.  8 


Dicks  V.  Dillahunty,  §48  n.  3 
Dillon  V.   i5arnhar<l,  g  42,  n.  7 
Dishon  u.  Bigelow,  g  3.'i,  n.  1 

V-  ,  g  40,  n.  1 

Dixon  V.  Fletcher,  g  26,  n.  7 

V.  Buck,  g24,  n.  4 

D.  M.  O'borne  &  Co.  v.  Carpenter, 

g  t)2,  n.  ;;4 

V.  ,  g  62,  n.  46 

V.  Erhard,  g  62,  n.  47 

Doane  v.  Dunham,  g  30,  n.  2 
Dodge  V.  McDonnell,  g  37,  n.  5 
Dole  V.  Stimpson,  g  10,  n.  3 
Donovan  v.   Wilson,  g  9,  n.  12 
Doolev  V.  Elbert,  g  10,  n.  3 

V.  Gallagher,  g  49,  n.  9 

Douglass  V.  Spears,  g  16,  n.  1 
Dounce  v.  Dow,  g  51 ,  n.  3 

V.  -,  g  57,  n.  1 1 

Downer  v.  Thompson,  g  25,  n.  4 
Downey  v.  O'Donnell,  |  18,  n.  1 
Downing  v.  Dearborn,  g  52,  n.  10 
Dows  V.  Kidder,  g  33,  n.  9 
Dressel  v.  Jordan,  g  16,  n.  1 
Dudley  v.  Abner,  g  33,  n.  1 
Duffam  V.  Dean,  g  2,  n.  3 
Dugan  V.  Nichols,  g  23,  n.  1 
Dula  V.  Cowles,  g  26,  n.  7 
Duncan  v.  Stone,  g  33,  n.  1 
Dunham  v.  Pette,  g  57,  n.  16 

V.  Railway  Co.,  g  42,  n.  7 

Dunlap  V.  Gleason,  g  40,  n.  1 

V.  Lambert,  g  1 1,  n.  12 

Dyer  v.  Libbv,  g  11,  n.  8 

V. ,  'g  23,  n.  2 

V.  Pearson,  g  29,  n.  4 


E. 


Eadon  v.  Doudley,  g  11,  n.  1 
Eagan  v.  Call,  g  49,  n.  3 
Early  v.  Garrett,  g  49,  n.  1 
Eastland  v.  Longshorne,  g  36,  n.  11 

''. ,  g  54,  n.  I 

Eclipse  Windmill  Co.  v.  Thorson, 

g  37,  n.  1 
Edgerly  v.  Gardner,  g  62,  n.  8 
Edgerton  v.  Hoge,  g  12,  n.  1 
Eilick  V.  Crim,  g  4S,  n.  6 
Edwards  i'.  CoUison,  g  61,  n.  1 
V.  Grand   Trunk   R.  R.  Co.,  § 

9,  n.  9 

V.  ,  g  10,  n.  6 

Elevator  Co.  v.  Banks,  g  32,  n.  2 
Elfet;.  Gadsden,  g  13,  n.  6 
r.  ,  g  15,  n.  8 


XIV 


Table  of  Cases. 


Ellis  V.  Deadman,  §  13,  n.  3 

V. ,  §  15,  n.  8 

V.  Hunt,  §24,  n.  1 

Elkins  V.  Kenyon,  §  55,  n.  22 
Emerson  v.  Brigluvm,  §  48,  n.  1 

V.  ,  §  48,  n.  6 

V.  ,  §54,  n.  11 

Erwiu  V.  Blake,  §  37,  n.  3 

V.  Burke,  §  60,  n.  10 

Estabrook  v.  Sweet,  §  35,  n.  7 
Esterly  v.  Eppelsheimer,  §  62,  n.  5 
Everett  V.  Clements,  §  22,  n.  2 

V.  Collins,  §  34,  n.  1 

V.  Hall,  §  38,  n.  1 

Eveictts  V.  Parks,  §  11,  n.  12 
Ewing  V.  Bailey,  §  27,  n.  3 
Exhaust  Ventilator  Co.  v.  C.  M. 

A  St.  P.  Ry.  Co.,  §  58,  n.  3 
Ex  parte  Williams,  §  35,  n.  2 


F. 

Fairbanks  v.  Eureka  Co,  §  33,  n.  1 

V. ,  §  40,  n.  3 

Fatman  v.  Thompson,  §  55,  n.  30 
Farmer  V.  D'Everado,  §  18,  n.  1 
Farmers'  Mut.  Ins.  Co.   v.  Taylor, 

§  37,  n.  8 
Farris  v.  Martin,  §  16,  n.  2 
Farewell  v.  Rogers,  §  27,  n.  3 
Fenwick  v.  Floyd,  §  13,  n.  6 
Fessenden  v.  Mussey,  5  15,  n.  7 
Field  V.  Kinnear,  §  52,  n.  4 
Fifield  V.  Elmer,  §  33,  n.  1 
Figge  V.  Hill,  §  47,  n.  6 
Filley  v.  Pope,  §  27,  n.  8 
Fine  v.  Ilornsby,  §  9,  n.  4 
Finn  v.  Clark,  §  25,  n.  4 
First  Nat'l.  Bank  v.   Carson,  §  41, 

n.6 
V.  Erickson,  §  62,  n.  2 

First  Nat'l.  Bank  of  Marquette  u. 
Crowley,  §  22,  n.  1 

Fish  V.  Roseberry,  §  53,  n.  10 

Fisk  V.  Tank,  §  52,  n.  6 

Fitch  V.  Burk,  §  23,  n.  1 

Flatt  V.  Oriborne,  §  62,  n.  24 

Fleig  V.  Sleet,  §  34,  n.  1 

Fleemen  v.  McKean,  §  40,  n.  1 

Fleetwood   v.  Dorsey  Mach.   Co., 
§  58,  n.  6 

Fletcher  v.  Darth,  §  48,  n.  6 

V.  Young,  §  57,  n.  6 

Flich  V.  Warner,  g  40,  n.  22 

Flint  u.  Cook,  §_3S,  n.  6 

V. ,  §  57,  n.  3 

V.  Lyon,  §  53,  n.  4 


Flint  V.  Lyon,  §  55,  n.  14 
Fluman  v.  McKean,  §  33,  n.  9 
Foggart  V.  Blackweller,  §  55,  n.  1 

V. ,  §  55,  n.  9 

Folansbee  V.   Adams,  §  19,  n.  2 
Foley  V.  Mason,  §  33,  n.  4 
Forbes  v.  Marsh,  §  40,  n.  1 
Ford  V.  Sproule,  §  40,  n.  11 
Fore  V.  McKenzie,  §  48,  n,  14 
Forest  v.  Hamilton,  §  40,  n.  2 
Fosdick  V.  Schall,  §  40,  n.  1 

V. .  §  42,  n.  1 

V.  ,  I  42,  n.  7 

Foss  V.  Sabin,§  30,  n.  5 
Fosters.  Rockwell,  §  11,  n.  12 

V.  ,  §  25,  n.  4 

V.  Ropes,  §  19,  n.  1 

V.  Smith,  §  47,  n.  2 

Fox  V.  Emerson,  §  61,  n.  8 
Fraley  v.  Bispham,  f;  30,  n.  7 
Fralick  v.  Norton,  o  11,  n.  7 
Frazier  v.  Harvey,  j;  49,  n.  1 
French  v.  Hickox,  §  2,  n.  4 

V.  Vining,  §  49,  n.  1 

Frohreich  v.  Gammon,  §  62,  n.  42 
Frost  V.  Woodruff,  ?;  22,  n.  1 
Frostburg    Mining    Co.    v.     New 

England  Glass  Co.,  §  11,  n.  1 
Fuller  V.  Bean,  §  21,  n.  1 

V.  ,  §  23,  n.  1 

V.  ,  §  5,  n.  2 

V.  Little,  §  36,  n.  2 

V.  Schroeder,  §  38,  n.  7 

V. ,  §  62,  n.  14 

Furneaux  v.  Esterly,  §  62,  n.  3 
V.  ,  §  62,  n.  16 


G. 


Galveston   Railroad    v.   Cowdrey, 

§  42,  n.  7 
Gambling  v.  Read,  §  33,  n.  1 
Gammell  v.  Gunby,  §  52,  n.  1 

V. ,  §  52,  n.  5 

V. ,§53,  n.  11 

Gammon  v.  Abrams,  §  30,  n.  8 

- —  V. ,  §  44,  n.  6 

Gardiner  v.  Lane,  §  3,  n.  1 
Gardner  v.  Howland,  §  24,  n.  5 

V.  ,  §  45,  n.  4 

Garfield  v.  Paris,  §1 1,  n.  1 
Gassett  v.  Andover,  §  36,  n.  12 
Gatling  v.  Newell,  §  59,  n.  4 
Gault  V.  Brown,  §  1 1,  n.  10 

V. ,  §  12,  n.  5 

Gaylor  v.  Copes,  §  48,  n.  5 
Gaylord  Mfg.  Co.  v.  Allen,  §  52.  n.l8 


Table  of  Cases. 


XV 


George  v.  Stubbs,  g  23,  n.  2 

^;.  ,  g  33,  n.  1 

V.  Tuft«,  §40,  n.  26 

Gibbons  v.  Lukf,  §  40,  n.  16 
Gibbs  V.  Bpnjamin,  g  10,  n.  2 

V. ,  §  22,  n.  9 

V.  Hall,  I  52,  n.  1 

&  Sten-it't  Mfg.  Co.  v.  Kasxe- 

zyke,  I  61,  n.  1 
Gibson  v.  Cranage,  §  18,  n.    I 

V.  Stevens,  §  11,  n.  2 

V.  ,  §  24,  n.  4 

GiflFordi;.  Eetts,  3  Gl,  n.  3 
Gilbert  v.  N.  Y.  C.  R.  R.  Co.,  §  19, 

n.  1 
Gillman  v.  Hill,  §  9,  n.  15 

V,  ,  §  11,  n.  14 

Gilmore  v.  Holt,  §  36,  n.  4 
V.  Newton,  §  2,  n.  1 

Girard  v.  Taggart.  §  28,  n.  3 
Girst  V.  Jones,  §  .")2,  n.  5 
Glen  V.  Whitakcr,  §  25,  n.  4 
Goddard  v.  Binney,  g  21,  n.  4 
Goodell    V.     Fairbrothers,    §    41, 

n.   14 
Goodkin  v.  Graham,  §  48,  n.  3 
Goodspeed  v.  South    Bend    Plow 

Co.,  §  .35,  n.  10 
Goodwin  v.  Holbiook,  §  23,  n.  4 

V.  May,  §  40,  n.  1 

V.  Wells,  §  26,  n   3 

Gorham  v.  Fisher,  §  1  1,  n.  14 
Gossler  v.  Eagle  Sugar  Refinery,  g 

30,  n.  7 
Gowen  v.  Klous,  §  14,  n  2 

V.  ,  §  15,  n.  2 

Gowing  V.  Knowles,  §  3,  n.  2 
GraflFw.  Foster,  §  30,  n.  8 
Grafton  v.  Cummings,  g  14,  n.  2 
Grant  v   Thompson,  §  2,  n.  4 
Grave  v.  Donaldson,  g  19,  n.  2 
Gray  v.  Wass,  §  37,  n.  3 
Griet  v   Cole,  §  62.  n.  1 
Griffin  v    Chubb,  g  6,  n.  1 
Griffith  V.  Fowler,  §  2,  n.  3 

V   Morrison,  ^  40,  n.  27 

Grimaldi  v.  White,  g  58,  n.  10 
Grimes    v.     Hamilton    Co.,   §    13, 

n.  7 
Groning  v.  Mendham,  §  58,  n.  10 
Gross  V.  Kurski,  §  48,  n.  4 
Grover  V    Warfield,  g  9,  n.  6 
Grune  v.  Dingley,  g  27,  n.  1 
Gurney  v.  Howe,  §  32,  n.  7 
Gunther  v.  Atwell,  g  56,  n.  20 


H. 


Haase  v.  Nonemacher,  g  44,  n.  3 
lladin  v.  Coleman,  '^_  19,  n.  2 
Hadley  v.  Clinton  Co.,  g  49,  n.  1 

V. ,  g  49,  n.  3 

V.  Prath.'r,  g  49,  n.  1 

V. ,  '^,49,  n.  2 

Ilaggerty  v.  Palmer,  g  32,  n.  3 
Hahn  v.  Doolitile,  g  4*9,  n.  5 

V.  Fredericks,  g  22,  n.  1 

Hall  V.  uEtna  Mfg.  Co.,  §  44,  n.  7 

V.  Gaylor,  g  25,  n.  I 

V.  Huntley,  g  22,  n.  9 

V.  Stevens,  g  34,  4 

llakins  v.  Pemberton,  g  56,  n.  12 
Hamilton  v.  Ganyard,  §53,  n.  8 
Hammott  v.  Lineman,  §  17,  n.  3 

V.  Linneman,  g  23,  n.  1 

V.  Lineman,  §  33,  n.  2 

V.  ,§39,  n.  5 

llanaur  v.  Bartels,  g  31,  n.  1 
Hanks  v.  McKee,  g  53,  n.  4 
Hannequin  v.  Sands,  g  35,  n.  12 
Hanson  v.  Barnes,  g  13,  n.  6 

V.  Meyer,  §  32,  n.  3 

Hargus  v.  Stone,  g  52,  n.  5 
Harkness  v.  Russell,  g  40,  n.  1 

V. ,  p  40,  n.  3 

V. ,  §  41,  n.  5 

V. ,  §  42,  n.  3 

Harley  o.  Golden  State  Works,  | 

47,  n.  4 
Harmony  v.  Bingham,  §  20,  n.  2 

V.  ,  §  20,  n.  3 

Harris  v.  Simmerman,  g  37,  n.  1 

V.  Waite,  §  52,  n.  1 

V.  ,  g  52,  n.  7 

V.  ,  §  53,  n.  2 

Harrison  v.  Shanks,  g  48,  n.  14 
Harsby  v.  Baker,  g  48,  n.  14 
Hart  v.  Middleton,  §  27,  n.  2 

V.  Mills,  g  26,  n.  7 

V.  Wright,  §  53,  n.  6 

Hartford    Sorghum    Mfg.    Co.    «. 

Brush,  §  38,  n.  3 
Ilasbrouck    v.    Loundsbury,  §  35, 

n.  1 
Haskins  v.  Swain,  g  37,  n.  6 

V.  Warren,  g  31,  n.  1 

Hastings  v.  Lovering,  g  30,  n.  5 

V.  ,  §  55,  n.  1 8 

Hatterline  v.  Rice,  g  21,  n.  4 
Hawkins  v.  Berry,  g  55,  n.  I 

V.  Chase,  g  13,  n.  4 

V.  Chance,  g  16,  n.  8 

e.  Pemberton,  g  30,  n.  5 

V.  ,  g  53,  n.  4 


XVI 


Table  of  Cases. 


Hawkins  v.  Pemberton,  §  56,  n.  19 
Ilawley  v.  Keeler,  §  10,  n.  4 

V.  Keler,  §  1  '2,  n.  1  ^ 

V.  Keeler,  §  12,  n.  6 

Ilayden  v.  Demets,  §  24,  n.  2 

V.  ,  §  24,  n.  7 

V.  Reynolds,  §  19,  n.  2 

Hays  V.  Currie,  ^  32,  n.  3 
HaVv.  Holt,  §20,  n.  2 

1  V. ,  §  20,  n.  3 

Hay«-ard  v.  Scougall,  §  28,  n.  1 
Hazard  v.  Loring,  §  36,  n.  4 
Heath  v.  Randall,  §  33,  n.  1 

^;. ,  §  40,  n.  1 

V.  White,  §  35,  n.  2 

Peckle  V.  Lurvey,  §  2,  n.  2 
Heermance  v.  Taylor,  §  11,  n.  13 
Helden  v.  Roberts,  §  30,  n.  8 
Henderson  v.  Lauck,  §  33,  n.  4 
Henkle  v.  Burke,  §  57,  n.  10 
Henshaw  v.  P>aiik,  §  4,  n.  1 

V.  Robins,  §  55,  n.  29 

Henson  v.  King,  §  56,  n.  1 
Hepburn  v.  Auld,  §  36,  n.  11 
Hernshaw  v.  Rohins,  b  30,  n.  5 
Herring  V.  llappock,  §  33,  n.  1 

V. ,  §  40,  n.  1 

V.  Skaggs,  §  61 ,  n.  1 1 

Herschorn  v.  Canney,  §  33,  n.  1 
Hersey  v.  Long,  §  59,  n.  13 
Hervey  v.  Rock  Island  Locomotive 

Works,  §  42,  n.  2 
Heryford  v.  Davis,  ^  42,  n.  4 
Hewess  v.  Jordan,  §  10,  n.  6 

V.  ,  ?  l'»,  n.  7 

y,  ,  I  ll,n.l3 

Hicks  V.  Cleveland,  §  12,  n.  1 

V.  Skinner,  §  48,  n.  14 

Higdon  V.  Thomas,  g  16,  n.  1 
Higgins  V.  Murrav,  §  25,  n.  1 
Highv.  Ripley,  §9,  n.  12 
Highland    Chemical  and    Mining 

Co.  V.  Mathews,  §  26,  n.  1 
Hightv,  Bacon,  §  52,  n.  1 

V. ,  'i  52,  n.  3 

Hill  V.  Bannister,  §  60,  n.  7 

V.  Heller,  §26,  n.  1 

V.  Hobart,  §27,  n.  1 

V. §  44,  n.  4 

V.  North' §47,  n.  13 

V.  Townsend,  §  40,  n.  15 

Hillman  v.  Wilcox,  §  56,  n.  1 

Hills  V.  Lynch,  §25,  n.  4 

Himrod   Furnace  Co.  v.  Cleveland 

and  Mahoning  R.  R.  Co.,  §13, 

n.  8 
Hine  V.  Roberts,  §41,  n.  15 
Hinslev  V.  Baker,  §  48,  n.  15 


Hintermister  v.  Lane,  §  33,  n.  9 

V. ,  §  41,  n.  16 

Hirschborn  ?-.  Stewart,  §  30,  n.  8 
Hodgson  V.  Barrett,  §  32,  n.  3 

V.    ,  §  33,  n.  7 

V.  ^  M4,  n.  1 

Hoe  V.  Sanbuni,  §  52,  n.  1 

V. ,  §  54,  n.  6 

Hoffman  v.  Carew,  §  2,  n.  2 
Hogins  V.  Plvnipton,  §  30,  n.  5 

V.  /§49,  n.  6 

Ilolden  V.  Chancey,  §  53,  n.  14 

V.  Dakin,  §  49,  n.  3 

V. ,  §  54,  n.  2 

Hollinder  v.  Koetter,  §  50,  n.  9 
Holme  V.  Guppy,  §  19,  n.  2 
Holmes  v.  Wood,  §  55,  n.  40 
Homesley  v.  Hogne,  §  2,  n.  3 
Homes  v.  Smith,  §  27,  n.  3 
Hooban  v.  Bidwell,  §  6,  n.  1 
Hook  V.  Stovall,  §  58,  n.  I 
Hooker  v.  Knob,  §  9,  n.  5 
Hopkins  V.  Appleby,  §  58,  n.  10 

V.  Tanquerav,  §  47,  n.  1. 

V.  Ware,  §  34,  n.  2 

Horton  v.  Green,  §  56,  n.  12 
Hotchkiss  V.  Gage,  §  49,  n.  6 

V.  Hunt,  §  33,  n.  1 

,  V. ,  §  40,  n.  1 

Hough  V.  May,  §  34,  n.  1 
Hoult  V.  Baldwin,  §  54,  n.  3 
House  V.  Foster,  §  59,  n.  4 
Houston  V.  Gilbert,  §  55,  n.  34 
Howard  v.  Borden,  §  11,  n.  5 

V.  Hayes,  §  30,  n.  8 

V.  Hoey,  §  53,  n.  5 

y_ \  §  53,  n.  9 

Howe  V.  Hayward,  §  12,  n.  2 

V.  Huntington,  §  27,  n.  1 

Howes  V.  Jordan,  §  10,  n.  3 
Howie  V.  Rea,  §  52,  n.  18 
Howland  v.  Harris,  §  45,  n.  4 
Hover  v.  Peters,  §  54,  n.  13 
Hovey  v.  Hovey,  §  2,  n.  4 
Huckleman  v.  Harrison,  §  48,  n.  1 
Hudgins  v.  Perry,  §  47,  n.  13 
Hudson  V.  Weir,  §  *.',  n.  1 
Hughes  V.  Banks,  §  55,  n.  34 

V.  Bray,  §  50,  i  .  I 

V.  Sheaff,  §  17,  n.  3 

Hulos  V.  Slevin,  §  36,  n.  11 
Humphries  v.  Carvalho,  §  38,  n.  2 
Hunt  V.  Livermore,  §  18,  n.  1 

V.  Sackett,  §  48,  n.  8 

Hunter  v.  Wright,  §  25,  n.  1 
Huntington  v.  Hall,  §  48,  n.   I 

V. ,  §  48,  n.  6 

Hurd  V.  West,  §  44,  n.  3 


Table  of  Cases. 


xvii 


Hussey  v.  Thornton,  §  40,  n.  I 
Hutchins  v.  Gilchrist,  §  22,  n.  9 
Hutchinson  v   For<],  g  4,  n.  1 

V.  Grand  Trunk  Ry.  Co.,  g  21, 

n.  I 
Hyatt  V.  Boyle,  §  53,  n.  6 
Hyde  v.  Latliroj),  g  22,  n.  11 
Hyland  v.  Sherman,  §  54,  n.  11 


I. 


Ireland  v.  Livingston,  §  26,  n.  5 
International     Pavement    Co.    v. 

Smith,  §  56,  n.  22 
Isherwood  v.  Whitmore,  §  36,  n.  6 
Ivory  V.  Murphy,  §  16,  n.  1 
Irwin  V.  Thompson,  §  48,  n.  13 


J. 


Jack  V.  Des  Moines  <fe  Fort  Dodge 

R.  R.  Co.,  §  55,  n.  15 
Jackson  v.  Covert,  §  9,  n.  10 

V.  Bartlett,  g  37,  n.  4 

Jacob  V.  Kirke,  g  14,  n.  3 
Jameson  v.  Gregory,  §  44,  n.  3 
James  v.  Muir,  §  '>,  n.  1 
Jellison  v.  .Jordon,  §  8,  n.  3 
Jenkins  v.  Jarrett,  §  31,  n.  1 
Jenness  v.  Iron  Co.,  g  3,  n.  2 
Jennings  v.  Gratz,  §  53,  n.  4 
Jewett  V.  Warren,  §  24,  n.  2 
J.  I.  Case  Threshing  Machine  Co. 

V.  Veanon,  §  62.  n.  32 

V. ,  §  57,  n.  4 

Jinks  V.   Howe  .Sewing   Machine 

Co.,  §  41,  n.  11 
Johnson  v.  Babcock,  §  2,  n.  3 

V.  Cope,  §  54,  n.  2 

V.  Cuttle,  §  10,  n.  6 

V.  Latimer,  jJ  47,  n.  7 

V.  McLane,  §  38,  n.  2 

V.  ,  g  44,  n.  3 

V.  Nicolls,  I  46,  n.  3 

V.  Raylton.  §  4t),  n.  2 

V.  Trinity  Cli.  Soc,  §  13,  n.  7 

V.  Watson,  §  9,  n.  16 

Jones  V.  Bright.  ^  52,  n.  1 

V.  ,  §  52,  n.  4 

V.  George.  §  47,  n.  15 

V.  ,  §61,  n.  9 

V.  Just,  I  58,  n.  2 

V.  ,  I  53.  n.  4 

V.  Murray,  §  54,  n.  11 

— ^  V.  Pearce,  §  22,  n.  4 


Jones  V.  Quick,  §  56,  n.  1 

V.  Richardson,  §  4,  n.  1 

V.  United  States,  §  18,  n. 

V.  Wasson,  g  5U,  n.  7 

Jordan  v   Foster,  ^  47,  n.  13 

V.  James,  §  4.'>,  n.  3 

Jowens  V.  Blandy,  g  40,  n.  1 
Joy  V.  Sears,  g  24,  n.  3 
Justice  V.  Terry,  g  16.  n.  1 


K. 

Kalsea  v.  Haines,  g  23,  n.  2 
Kauffman  v.  Stone,  g  22,  n.  5 
Keeler  v.  Field,  g  32,  n.  3 

V.  Vandervere,  §  21,  n.  3 

Kein  v.  Tupper.  §  26,  n.  9 
Keinbockle  v.  Zugbaum,  §  40,  n.  9 
Kellogg  V.  Denslow,  g  58,  n.  10 

V.  Gilbert,  §  37,  n.  4 

Kelton  V.  Leonard,  §  37,  n.  5 
Kemp  V.  Ice  Co.,  §  20,  n.  2 

V.  ,  §  20,  n.  3 

Kenny  v.  Planer,  §  40,  n.  3 
Kent  v.  Friedman,  §  59,  n.  7 
Kermeyer  v.  Newby,  §  34,  n.  1 
Kimball  v.  Bangs,  |  56,  n.  13 

Mfg.   Co.   V.  Vroman,  §  57, 

n.  14 

King  V.  Bates,  §  33.  n.  10 

V.  Towsley,  §  62,  n.  27 

V.  Quidnick  Co.,  g  47,  n.  5 

Kingsbury  v.  Taylor,  §  49,  n.  1 

V.  ,  §  52,  n.  4 

Kingsley  v.  Fitts,  g  37,  n.  5 

V.  Wallis,  §  27,  n.  1 

Kinley  v.  Fitzpatrick,  §  56,  n.  1 

V. ,  §  55,  n.  9 

Kinney  v.  Ingalls,  §  .'i5,  n.  3 
Kirby  v.  Harrison,  g  58,  n.  9 
Kirkpatrick   v.   Alexander,  §   27, 

n.  7 
Ketchum  v.  Wells,  §  53,  n.  4 
Klein  v.  Sebald,  3  2,  n.  1 
Knight  V.  Bean,  g  20,  n.  1 

V.  Mann,  §  10,  n.  2 

V.  ,  I  10,  n.  3 

Knowlton  v.  Oliver,  §  57,  n.  15 
Kohl  V.  Lindley,  §  47,  n.  14 
Kohler  v.  Haye.'^.  g  40,  n.  1 
Kraft  V.  Dulles,  g  33,  n.  6 

V.  ,  g  39.  n.  4 

V.  Hurtz,  g  23,  n.  4 

Kribs  V.  Jones,'g  20.  n.  3 
Kugler  V.  Wiseman,  g  19,  n.  2 
Kutner  v.  Warner,  g  40,  n.  1 


XVIU 


Table  of  Cases. 


Lackey  v.  Stouder,  §  48,  n.  6 
Laing  v.  Fidgeon,  §  53,  n.  2 
Lamb  v.  Crafts,  ^  30,  n.  5 

V. ,  §  30,  n.  7 

Lambert  t;.  McCloud,  §  22,  n.  1 
Lanfear  v.  Sumner,  §  45,  n.  4 
Lawrence  v.  Miller,  §  19,  n.  2 
League  v.  Waring,  §  34,  n.  4 
Lee  V.  Kimball,  §  45,  n.  3 
Leisherness  v.  Berry,  §  24,  n.  7 

V. ,  §  24,  n.  2 

Leonard  v.  Peoples,  §  56,  n.  1 
Leopold  V.  Van  kirk,  §  53,  n.  2 
Lernedt'.  Wannemacher,  §  16,  n.  5 
Leslie  v.  Evans,  §  30,  n.  8 

V.  Knickerbocker  Life   Ins. 

Co.,  §37,  n.  6 
Lespard  v.  Vankirk,  §  55,  n.  8 

V. ,  §  52,  n.  1 

Lester  v.  East,  §  31,  n.  1 

V. ,§40,  n.  1 

V.  Graham,  §  54,  n.  1 

Levy  V.  Burgess,  §  18,  n.  1 

V.  Green,  §  26,  n.  7 

Lewis  V.  Bourbon,  §  37,  n.  5 

V.  Gamage,  §  37,  n.  3 

V.  Hubbard,  §  62,  n.  21 

V.  McCabe,  §  40,  n.  6 

V.  Rountree,  §  53,  n.  4 

V. ,  §  59,  n.  4 

Lightburn  v.  Cooper,  §  56,  n.  6 
Lincoln  v.  Johnson,  §  3,  n.-l 
Lindley  v.  Hunt,  g  47,  n.  14 
Lindsay  v.  Davis,  |  55,  n.  35 
Lines  v.  Smith,  §  48,  n.  1 
Lingham  v.  Eggleston,  §  22,  n.  1 
Linton  v.  Porter,  §  48,  n.  3 
Little  V.  Page,  §  33,  n.  1 

V.  ,  §  40,  n.  3 

Litterel  v.  St.  John,  §  35,  n.  11 
Liven  t).  Smith,  §  32,  n.  3 
Logwood  V.  Hussey,  §  40,  n.  1 
Long  V.  Hicks,  §  47,  n.  13 

V.  llickingbottom,  §  48,  n.  6 

Loomis  V.  Bragg,  §  41,  n.  13 
Lord  V.  Grow,  §  49,  n.  1 

V.  Wheeler,  §  20,  n.  3 

Loring  v.  Cooke,  {J  36,  n.  11 
Loris  V.  Long,  §  54,  n.  2 
Lovell  V.  Williams,  §  35,  n.  9 
Low  V.  Pew,  §  4,  n.   1 
Lowry  v.  Barelli,  §  22,  n.  1 
Lucy  V.  Bundy,  §  33,  n.  1 
Lupin  V.  Marie,  §  35,  n.  12 


M. 


Maclay  v.  Harvey,  §  3,  n.  2 
Mackaness  v.  Long,  jJ  1,  n.  1 
Mackey  v.  Swartz,  {^  30,  n.  8 
Magee  v   Billings,  §  50,  n.  1 
Magruder  v.  Gage,  §  11,  n.  12 

V.  ,  §  25,  n.  5 

V. ,  §25,  n.  1 

Mann  v.  Everston,  §  53,  n.  2 

V.  ,  §54,  n.'9 

Mansfield  v.  Trigg,  §  30,  n.  1 
Manwell  v.  Briggs,  §  40,  n.  1 
Marble  v.  Moore,  §  23,  n.  2 
Marland  v.  Stanwood,  §  26,  n.  7 
Marquette    Mfg.    Co.    v.    Jeffery, 

§  40,  n.  3 
Marsh  v.  Hyde,  §  10,  n.  7 

V. ,  §  11,  n.  10 

V.  McGreevy,  §  50,  n.  10 

V.  Rouse,  §  10,  n.  3 

V. ,§  11, n.  11 

V.  Webber,  §  55,  n.  1 

Marshall  v.  Duke,  §  48,  n.  1 
Marston  v.  Baldwin,  §  33,  n,  2 

V. ,  §  39,  n.  5 

V. ,  §  40,  n.  1 

Martin  v.  Adams,  §  1,  n.  1 

V.  How,  §  59,  n.  1 

V.  Maxwell,  §  59,  n.  4 

Mason  v.  Chappell,  §  52,  n.  5 

V.  Dicker,  §  16,  n.  1 

V.  Phelps,  §  5,  n.  2 

Massey  v.  State,  §  1,  n.  1 
Mathews  v.  Lucia,  §  40,  n.  14 
Maxwell  v.  Brown,  §  10,  n.  2 

V. ,  §  10,  n.  6 

Mazone  v.  Caze,  §  18,  n.  1 
McAndrews  v.  Santee,  §  22,  n.  8 
McCandish  v.  Newman,  §  5,  n.  2 
McCarty  v.  Gok^v,  §  27,  n.  7 
McClamrock  v.  Flint,  §  52,  n.  12 
McClung  V.  Kelley,  §  19,  n.  1 

V. ,  §  53,  n.  2 

V. ,  §  53,  n.  8 

McComb  V    Parker,  §  23,  n.  1 

V.  Wright,  §  16,  n.  7 

McConnell  v.  Hughes,  §  5,  n.  4 
McCoy  V.  Artcher,  §  48,  n.  6 
McCormick    Harvesting   Machin- 
ery  Co.    V.    Chesrown,   §   62, 
n.  13 

V.  Cochran,  §  62,  n.  11 

V.  Embree,  §  62,  n.  25 

V.  Hays,  §  62,  n.  16 


Tabic  of  Cases. 


XIX 


McCormick  v.  Bafssal  §  38,  n.  1 

<;.  ,  g  r,-j,  n.  IS 

-'.  Kelley,  ^  *V2,  n.  39 

V  Sarsnn,  jj  57,  n.  17 

V    ,g  (ij,  n.  40 

Mc( "ready  v.  Wright,  jJ  2-2,  n.  3 
McFarlaml  v.  Farmei,  g  33,  n.  10 

V.  Newman,  ^  55,  n.  9 

McFarson's  Appeal,  g  15,  n.  8 

,  §  16  n.  1 

McGrarock  v.  Ward.  §  54,  n.  8 
McGregor  v.  Penn,  §  56,  n.  1 
McGrew  v.  Rroder,  g  2,  n.  2 
McGuire  v.  Kearney,  §  47,  n.  14 

V   Bid  we  11,  §  35,  n.  2 

McLean  v.  Dunn,  §  28,  n.  3 
McKee  v  Garcelon,  §  24,  ii.  4 
McKinley  v.  Watkins,  §  3,  n.  2 
McMahon  v.  Sloan,  §  2,  n.  1 
McMillan  v.  Vendeilip,  §  26,  n.  9 
McNight  V.  Devlin,  §  4S,  n.  1 
Meacham  v.  Cooper,  §  61,  n.  5 
Mead  v.  Case,  §  9,  n.  12 

V.  Digalyer,  §  26,  n.  9 

Meager  v.  Hollenberg,  §  41,  n.  12 
Merchants'   Natl  Bank  v.  Bangs. 

§  23,  n.  3 
Merchant  v.  Chapman  §  11,  n.  12 

V.  ,  §  25,  n.  1 

Melby  v.  Osborne,  §  62,  n.  43 
Merriara  v.  Field,  §  53,  n.  2 

V.  ,  §  53.  n.  13 

V.  United  States,  §  26,  n.  10 

Merrill  v.  Stanwood,  §  32,  n.  3 
Mertens  v.  Adcock,  §  28,  n.  3 
Messer  v.  Woodman,  §  10,  n.  4 
Messenger  i'.  Pratt,  §  53,  n.  4 
Meyer  v.  Car  Company,  §  42,  n.  5 
Middlesex  Co.  v.  Osgood,  §  23,  n.  4 
Middlesex  v.  Osgood,  §  8,  n.  3 
Mill  Dam  Foundry  v.  Hoovy,  §  20, 

n.3 

V.  .  §  19,  n.  2 

Miller  V.  Moore,  §  37,  n.  8 

V.  Nichols,  g  57.  n.  4 

V.  Van  Tassel,  §  48,  n.  12 

V.  Nichols,  §  62,  n.  32 

Miles  V.  Roberts,  §  23,  n.  4 
Minneapolis    Harvester  Works  v. 

Bonallie,  §  61,  n.  1 

,;. ,  g62,  n._41 

Minor  V.   Mechanics'  Bank,  §  37, 

n.  1 
Missroom  v.  Waldo,  §  54,  n.  1 
Mitchell  V.  Dubose,  §  54,  n.  1 

V.  Kingman,  3  2,  n   4 

Mixer  V.  Coburn   ^  49,  n.  1 
V. ,  §  30,  n.  7 


V.  Howarth,  ?  9,  n.  12 

Mockbee  v.  Gardner,  ^  48,  n.  14 
Moffat  V.  Lunt,  §  27,  n.  9 
Moody  V.  Blake,  §  2,  n.  1 
Moore  v.  McKinlay,  §  53,  n.  2 

V.  Purcy,  g  44,  n.  3 

Morey  v.  Medbury,  §  25,  n.  1 
Morehouse  v.  Comstock,  g  53,  n.  4 
Morgan  v.  Thelford,  g  62,  n.  30 
Morrill  v.  Wallace,  g  30,  n.  5 

V.  ,  g  55,  n.  1. 

V.  ,  g  55,  n.  9 

V.  ,  g  56,  n.  1 

Morris  v.  Lynde,  g  41 ,  n,  S 

V.  Thompson,  g  48,  n.  1 

Morse  v.  Sherman,  g  23,  n.  1 
Morrow  v.  Campbell,  g  21,  n.  5 

V.  Reed,  g  21 ,  n.  5 

Moses  V.  Mead,  §  47,  n.  14 

V.  ,  g49,  n.  1. 

V.  ,  g  52,  n.  18 

V.  ,  g54,  n.  11 

Moss  V.  Sweet,  g  44,  n.  1 

Mount  Olive  Cemetery  v.  Shubert^ 

g37,  n.  7 
Mowry  v.  Kirk,  g  27,  n.  4 
Mumford  v.  McPherson,  g  60,  n.  8 

V. ,  g  60,  n.  9 

Murray,  i'.  Baker,  g  18,  n.  1 

V.  Brooks,  g  62,  n.  9 

V.  Smith,  g  27,  n.  1 

V.  ,  g  44,  n.  4 

V. ,  g  55,  n.  9 

Mushat  V.  Brivard,  g  8,  n.  3 


N. 

Nash  V.  Weaver,  g  41,  n.  3 
Nauman  v.  Overlee,  g  59,  n.  10 
Neane  v.  Arntz,  g  55,  n.  8 
Neilson  v.  Dickinson,  g  49,  n.  11 
Neldon  v.  Smith,  g  45,  n.  5 
Neufville  i'.  Stuart,  g  15,  n.  9 
Newberv  v.  Wall,  g  52,  n.  18 

V. ,  g  53,  n.  1 

Newcomb  v.  Cabell,  g  24,  n.  2 

V   Railroad,  g  24,  n.  6 

Newhall  v.   Langdon,  g  24,  n.  6 
Newton  v.   Dunham,  g  5,  n.  2 

V.  Bronson,  jJ  16,  n.  9 

Nichol  V.  Ridley,  g  13,  n.  6 
Nicliola  V.  Hail,  g  57,  n.  4 

I'.  ,  §  6L','n.  32 

Nichols  V.  Knowles,  g  57,  n.  16 

V.  ,  g  r,2,  n.  23 

Nicholas  v.  Way  man,  g  62,  n.  4 
V. ,  g  62,  n.  16 


XX 


liable  of  Cases. 


Nichols  V.  Hill,  a  00,  n.  1 

r.  Lark  in,  f  tJ2,  n.  22 

V.  Mitchell,'  §  9,  n.  5 

V.  Morse,  g  28,  n.  2 

Kicholson  r.  Moog.  §  37,  n.  5 
Nixon  V.  Nixon,  §  27,  n.  4 
Noakes  v.  Morey,  §  12,  n.  2 
Norman  v.  Philiips,  §  11,  n.  12 
Norrington  v.  Wright,  §  27,  n.  8 
North  V.  Forest,  §  9,  n.  4 
Norton  v.  Dean,  |  15,  n.  8 
Nowbray  v.  Cody,  §  38,  n.  1 
Nutting  V.  Dickinson,  §  5,  n.  2 

V. ,  §  8,  n.  1 

Nye  V.  Iowa  City  Alcohol  Works, 
2  GO.  n.  5 


0. 


n.  3 


Oatman  v.  Walker,  §  2' 
Ober  V.  Smith,  §  25,  n.  4 
O'Brien  v.  Jones,  §  61,  n.  4 
Ockington  v.  Richey,  §  22,  n.  1 

V.  ,  §  22,  n.  6 

Odell  V.  Boston  &  M.  R.  R.,  g  25,  n.  4 
Olivant  v.  Bayley,  §  52,  n.  5 
Oneida  Mfg.  ("o.  v.  Lawrence,  §  54, 

n.  8 

V. ,  §  56,  n.  1 

O'Neal  V.  Bacon,  §  56,  n.  1 
O'Xeil  c.  Mining  Co.,  §  9,  n.  12 
Orcutt  V.  Nelson,  §  25,  n.  1 
Ormrod  v.  Huth,  g  49,  n.  J 
Ortman  v.  Green.  §  22,  n.  1 
Osborn  v.  Gaiitz  §  35,  n.  1 

V.  Grats,  §  47,  n.  1 

V.  Rawson.  §  62,  n.  16 

y.  ,  g  62,  n.  29 

Osborne  &  Co.  v.  Bell,  §  62,  n.  9 

V.  Marks,  §  62,  n.  38 

y.  ,  g  62,  n.  20 

Osgood  V.  Lewis,  §  30,  n.  5 

t;.  ,  §55,  n.  29 

Ottowa  Bottle  and  Flint  Glass  Co. 

V.  Gunther,  §  59,  n.  lU 
Otis  V.  Anderson,  §  49,  n.  1 
Otts  V.  Alderson,  §  56,  n.  1 
Overton  v.  Plielan,  g  52,  n.  1 

V. ,  g  52,  n.'2 

Oxendale  v.  Whetherell,  §  26,  n.  7 


P. 


Pacific  Guano  Co.  v.  Muller,  §  52, 

n.  4 
Iron  Works  v.  Long  Ise.  R. 

Co.,  §25,  n.  1 


Pacific  Guano  Co.  v.  I<ong  Island 

R.  R.  <'o.,§  28.  n.  2 

V.  Newhall,  §  52,  n.  4 

V. ,  §  52,  n.  5 

Padden  v.  Marsh,  §  44,  n.  7 
Page  V.  Ford,  §  52,  n.  9 
Palmer  v.  Stevens,  §  16,  n.  4 
Palmer's  Appeal,  §  49,  n.  2 
Palte  V.  Pelton,  §48,  n.  8 
Parker  v.  Bodley,  §  15,  n.  8 

V.  Perkins,  §  36,  n.  3 

V.  Schenck,  §  9,  n.  12 

V.  Wall  is,  §  11,  n.  6 

Parks  V.  Cornstalk,  g  39,  n.  3 
Park  V.  Morris  Co.,  g  55,  n.  25 

V.  ,  §  61,  :).  12 

Parmlee  v.  Adolph,  §  58,  n.  4 
Parris  v.  Rol^erts,  §  3'.,  n.  1 
Parsons  V.  Loucks,  g  9,  n.  12 
Paton  V.  Currie,  g  19,  n.  1 
Patrick  v.  Meserne,  §  24,  n.  4 

V.  Leach,  §  55,  n.  5 

Patton  V.  McCane,  §  4ii,  n.  1 
Passaic  Mfg.   Co.  v.  Hoffman,  §  9, 

n.  1 1 
Paulson  V.   Orborne  &  Co.,  §  62, 

n.  10 
Pease  v.  Sabin.  g  53,  n.  2 

V.  Salim,  §  52,  n.  •5' 

V.  Smith,  g  2,  n.  2 

Peck  V.  United  States,  §  19,  n.  2 
Peckerell  v.  Rose,  §  3,  n.  2 
Peet  V.  Spencer,  §  43,  n.  3 
Penniman  v.  Pierson,  §  54,  n.  2 
People's  Bank  v.  Gridley,  g  24,  n.  2 

V.  Kurtz,  g  4S,  n.  1 

Percival  v.  Blake,  g  58,  n.  10 
Perkins  v.  Douglass,  §  44,  n.  3 
Peters  v.  Ballister,  §  24,  n.  4 
Phillis  V.  Sandwich  Mfg.  Co.,  §  30, 

n.  8 
Phillip  V.  Aurora  Lodge,  g  37,  n.  6 
Phillips  V.  Ballard,  g  34,  n.  1 

V.  BistoUi,  §  10,' n.  3 

V.  McFarlane,  §  9,  n.  12 

V.  Merritt,  §  11,  n.  6 

V.  Ocmulgee  Mills,  g  10,  n.  7 

V.  ,  §  11,  n.  6 

V.  Stevens,  g  20,  n.  3 

V.  Taylor,  g  27 

Pickard  v.  McCormick,  g  55  ,n.  Si 
Pickering  v.  Busk,  g  29,  n.  3 

"  V. ,  g  37,  p.  7 

Pierce  v.  Davis,  §  34,  n.  1 

V.  Emery,  g  4,  n.  1 

Pienson  v.  Hoag,  g  33,  n.  4 
Pinkham  v.  Mattox,  §  10,  n.  1 
V.  ,  §  11,  n.  1 


1  able  of  Cases. 


XXI 


Pinkham  v.  Mattux,  §  11,  n.  6 

Pitkin  V.  Xoyf's,  g  'J,  n.  12 

Pitts  Sons  Mfg.  Co.  V.  Spittsnogle, 

§  57,  n.  4 

V.  ,  g  0-2,  n.  32 

Plant  Seed  Co.  v.  Ihill,  §  3.  n.  2 
Pontifer  v.  Wilkinson,  §  19,  n.  2 
Poland  V.  Miller  g  52,  n.  13 

V.  ,  g  5'J,  n.  8 

Polhemus  v.  lleiman,  §  55,  n.  3 
Port  Carbon   Iron  Co.  v.  Groves,  § 

52.  n.  5 

V. ,  3  52,  n.  15 

V. ,  §  53,  n.  4 

Porter  v.  Pettingill,  g  33,  n.  1 

V. ,  §  44,  n.  3 

V.  Pittsburgh  Steel  Co.,  §  42, 

n.  6 
Powell  V   Bradlee,  §  32,  n.  3 
Prairie  Farmer  Co.  v.  Taylor,  §  38, 

n.  2 
Pratt  i;.  Chase,  §  10,  n.  8 

V.  Parkman,  §  24,  n.  4 

'  V.  ,  §  45,  n.  4 

Prescott  V.  Locke,  g  10,  n.  2 

V.  ,  g  11,  n'.  2 

V. ,  I  23,  n.  1 

Price  V.  Jones,  3  40,  n.  1 
Prime  v.  Cobb,  §  2,  n.  1 
Pritchard  v.  Fox,  §  58,  n.  2 
Proctor  V.  Spratley,  §  30,  n.  8 

V.  ,  §  50, "n.  G 

Puckettv.  Reed,  §  24,  n.  2 

V. ,  §  24,  n.  7 

Putnam  v.  Tillotson,  §  25,  n.  I 

V. ,  I  11,  n.  12 

V.  Lamphier,  g  40,  n.  1 


Q. 

Quimby  v.  Carr,  g  25,  n.  4 
Quintard  v.  Bacon,  g  11,  n.  7 


R. 

Railroad  v.  Evans,  g  16,  n.  1 
Railroaii  Co.  r.  Bowns,  g  20,  n.  2 

V.  Sent,  g  2('),  n.  7 

Raines  v.  Totman.  g  00,  n.  2 
Rakes  v.  Pope,  g  9,  n.  17 
Randall  v.  Johnson,  g  5,  n.  5 

V.  .  g  23.  n.  5 

V.  Newson,  g  52,  n.  4 

V.  ,  g  53,  n.  2 

V.  Rhodes,  g  56,  n.  2 

■ V.  Thornton,  g  55,  n.  1 


Randolph   &  Co.  v.  Elliott,  g  21, 

n.l 
Rankin  v.  Goddard.  g  23,  n.  5 
Uappleye  v.  Adie,  >}  1 1.  n.  3 

V.  ,  g  I  1.  n'    s 

Rawls  V.  Saulsbuiy.  j/  3'.,  n.  1 
Ray  V.  Tomj)Son.  g  ■i4,  n.  3 

V.  ,  g  44,  n.  8 

Rease  f .  Sabm,  g  •")_',  n.  1 
Redpath  v.  KolJage,  g  34,  n.  3 
Redewell  v.  Gilleii,  g  41,  n.  12 
Reed  v.  Hastings,  g  55,  n.  4 

V.  Upton,  g  40,  n.  1 

Reenes  v.  Harris,  g  40,  n.  1 
Refining  Co.  v.  Miller,  g  33,  n.  1 
Reg  V.  Chawton,  g  27,  n.  2 
Remick  v.  Sandf'urd,  g  10,  n.  3 

V.  ,  g  16,  n.  10 

Reuss  V.  Picksley,  g  16,  n.  1 
Reynolds  v.  Palmer,  g  50,  n.  6 

V.  ,  g  61,  n.  2 

V.  Shuter,  g  26,  n.  4. 

Rhea  v.  Otto,  g  22,  n.  1 
Rhoads  v.  Castner,  g  13,  n.  7 
Rice  V.  Churchill,  g  23,  n.  4 

V.  For.syth.  g  48,  n.  1 

V.  ,  g  52,  n.  1 

V. ,  I  52,  n.  18 

V.  ,  g  56,  n.  3 

V.  Peet,  g  2,  n.  4. 

V.  Stone,  g  4,  n.  1 

Richardson     v.    Boston    Chemical 

Labratory,  g  36,  n.  11 

V.  Bouck,  g  54,  n.  10 

V.  Ford,  g  27,  n.  4 

V.  Gray,  g  24,  n.  7 

V.  Paige,  g  55,  n.  21 

V.  Squires,  g  10,  n.  7 

Richmond  T.  tt  M.  Co.  v.  Farquat; 

g  30,  n.  5 

V ,  g  55,  n.  19 

Fiicketts  v.  Hays,  g  56,  n.  21 
Ricks  V.  Dillahunty,  g  56,  n.  12 

V.  ,  g57,  n.  5 

Riddle  v.  Varnum,  g  22,  n.  7 

V.  ,  g  23,  n.  1 

Ridgeway  v.  Kenneday,  g  40,  n.  3 
Riggs  r.  Magrauder.  g  9,  n.  2 
Rivers  v.  Gru-jett,  g  47,  n.  11 
Robbins  v.  Phillips;  g  40,  n.  8 
Roberts  v.   Fisher,  g  35,  n.  8 

V.  Hughes,  I  49,  n.  1 

V.  Morgan,  g  56,  n.  1 

V.  Vaurhan,'g9,  n.  12 

Robinson  c.  P.atchelder,  g  36,  n.  11 
V.  Chandler,  g  52,  n.  1 

V.  ."  I  52!  n!  7 


xxn 


Table  of  Cases. 


Robinson  v.  Ins.  Co.,  §  18;  n.  1 

V.  Kice,  §  48,  n.  3 

Robson  V.  Miller,  §  52,  n.  18 
Rodgers  v.  Niles,  g  52,  n.  9 

V.  Woodruti',  §  45,  n.  5 

Rodrigines    v.    llabershaw,    §   47, 

n.  9 
Roe  V.  Bacheldor,  §  57,  n.  13 
Rogers  v.  Ackerman,  §  56,  n.  1 

V.  Niles,  §52,  n.  5 

V.  Phillips,  §  10,  n.  2 

Rolland  v.  Gundy,  §  2,  n.  2 
Rommel  v.  Wingate,  §  26,  n.  7 
Rootv.  Lord,  §  33,  n.  1 

V. ,  §  40,  n.  1 

Rose  V.  Beatie,  §  54,  n.  3 

V.  Hurley,  §  55,  n.  27 

Rossv.  Welch,  §  11,  n.  10 
Russell  V.  Carrington,  §  23,  n.  1 

V.  Minor,  §  32,  n.  3 

^,.  ,  §  40,  n.  12 

Rutter  V.  Blake,  §  60,  n.  4 
Ryan  v.  Dayton,  §  20,  n.  3 

V.  Tomlinson,  §  8,  n.  3 

V.  Ulmer,  §  50,  n.  2 

Ryder  v.  Neitge,  §  54,  n.  12 


S. 


Sage  V.  Sleutz,  §  33,  n.  1 

^. ^  §  40,  n.  1 

w. ,  I  40,  n.  5 

Sahlman  v.  Mills,  §  11,  n.  9 
Sale  V.  Darragli,  §  10,  n.  7 
Sales  V.  flickman,  §  15,  n.  8 
Salmon   Falls  Mf.  Co.  v.  Goddard, 

§  14,  n.  5     . 

V. ,  §  39,  n.  1 

Salmon  v.  Boyken,  §  27,  n.  8 

V.  Webster,  §  3,  n.  2 

Salter  v.  Wool  lams,  §  24,  n.  6 
Sanborn  v.  Flagler,  |  13,  n.  8 

V.  Folger,  §  Ifi,  n.  4 

V.  Kittridge,  §  2,  n.  3 

Sanderlin  v.  Trustees,  §  9,  n.  8 
Sanders  v.  Keber  &  Miller,  §  33, 

n.  8 

V. ,  §  40,  n.  3 

Sands  v.  Lyon,  §  36,  n.  4 

V.  Taylor,  §  28,  n.  3 

y_  ,  §  50,  n.  4 

Sandwich  Mfg.  Co.  v.  Feary,  §  62, 

n.  26 

V.  Tindle,  §  62,  n.  4 

y.  _    §    62,    n.  25;    §    62, 

n.  28 
Sargent  v.  Currier,  §  48,  n.  1 


Sargent  v.  Gile,  §  33,  n.  10 

y, ,  §  44,  n.  3 

V.  Graham,  §  ST),  n.  1 

V  .Metcalf.  §40,  n.  1 

Saunderson  v.  Jackson,  §  16,  n.  5 
Savings  Association  v.   O'Conner, 

§  48,  n.  14 
Savoury  v.  Chapman,  §  37,  n.  4 
Sawyer  v.  Fisher,  §  33,  n.  1 

V.  Nichols,  §  1 1,  n.  1 

•  V. ,  §  1 1 ,  n.  3 

V.  Ware,  §  9,  n.  7 

Shenkev.  Rowell,  §  18,  n.  1 
Schlesinger  v.  Stratton,  §  44,  n.  3 
Schneiders.  Norris,  §  16,  n.  5 
School  District  v.  Dauchy,    §   20, 

n.  1 

V. ,  §  20,  n.  2 

Schuyler  v.  Ross,  §  47,  n.  13 
Scott  V.  Hix,  §  48,  n.  6 

V.  Raymond,  §  55,  n.  17 

Scranton  v.  Clark,  §  48,  n.  6 

V.  Mechanics'  Trading  Co.,  § 

57,  n.  17 

V.  ,  §  62,  n.  40 

Sedgwick  v.  Cottingham,  §  28,  n.  2 
Seed  V.  Lord,  §  35,  n.  1 
Seeds  v.  Simpson,  §  58,  n.  9 
Sellers  v.  Johnson,  §  34,  n.  3 
Selser  v.  Roberts,  §  50,  n.  2 

V. ,  §  50,  11.  3 

V. ,  I  50,  n.  5 

Sere  v.  McGoveni,  §  40,  n.  13 
Seris  v.  Beliocg,  §  22,  n.  1 
Sewell  V.  Ileiirv,  §  33,  n.  1 

V.  Fitch,  §"9,  n.  12 

Seymour  v.  Bennett,  §  18,  n.  1 
Shattuck  V.  Green,  §  4S,  n.  8 
Shaw  V.  Hurd,  §  19,  n.  2 

V.  Smith,  §21,  n.  4 

V.  Turnpike  Co.,  §  18,  n.  1 

Shenk  v.  Saunders,  §  33,  n.  2 

V.  ,  §  39,  n.  5 

Shepherd  v.  Paybus,  §  53,  n.  2 

V.  Pressev,  §  10,  n.  3 

V, ,  I  10,  n.  5 

V-  ,  I  1 1,  n.  4 

V.  ,  §  11,  n.  14 

Sherman  v.  Champlain  Trans.  Co., 

§  48,  n.  10 
Shipman  v.  Horton,  §  2,  n.  4 
Shireman  v.  Jackson,  §  40,  n.  1 
Shoenberger    v.    McEwen,    §    52, 

n.  14 
Shurtleir  V.  Willard,  §  24,  n.  2 
Simpson  v.  Krumbick,  §  11,  n.  1 

V.  Maritson,  §  27,  n.  2 

V.  Shackelford,  §  40,  n.  3 


Table  of  Cnses. 


XXIU 


Simpson  v.  Wiggin,  ^  ')6.  n.  8 
Sitnond  v.  Braildon,  §  ')»),  ii.  1 
4Sims  V.  Howell.  §   ")2,  n.  5 

V.  ,  jJ  52,  n.  IS 

V. ,  I  53,  n.  11 

Singer  Mfg.  Co.  v.  Tread  way,  §  41, 

n.  9 

V.  Cole,  §41.  n-  9 

Small  V.    Franklin   Miiiiui;  Co.,  § 

34,  11.  1 
Smalley  v.  Hendrickson,  §  58,  n.  7 
Smith  V.  Bank  of  the  State,  §  47, 

n.  9 

V.   Ferrand,  §  34,  n.  1 

V.  Foster,  g  33,  n.  J 

V.  Hudson,  §  II,  n.  12 

V.  Justice,  §  5"i,  n.  10 

V.  Kindall,§  41,  n.  7 

V.  Lewis,  §  19,  n.  2 

V.  ,  S  -&,  n.  7 

V.  ,  I  3U,  n.  2 

V.  Lynes,  §  33,  n.  9 

V.  ,  §  35.  n.  12 

V.  Miller,  |  34,  n.  2 

V.  Tilton,  I  17,  n.  2 

V.  Weaver,  §  1,  n.  1 

Snow  V.  Miles,  §  3,  n.  2 

V.  Schomacker  Mfg.  Co.,  §  52, 

n.  11 

V.  ,  3  55,  n.  31 

V.  ,  I  57,  n.  IS 

V.  Warner,  §  1 1,  n.  2 

Snyder  v.  Neefus,  §  16,  n.  9 

Sohn  V.  Jervis,  §  25,  n.  1 

South  Bend   Iron  Works  v.   Cott- 

rell,  §  43,  n.  4 
Southwestern     Freight      Co.      v. 

Standard,  §  32,  n.  10 
Southern    Ins.    Co.    v.    Cole,   §   9, 

n.  4 
South  erland  v.  Gilmour,  g  18,  n.  1 
Southwell  V.  Breezly,  §  26,  n.  2 
Southworth  v.  Smith,  §  36,  n.  4 
S.  P.  Babcock  v.  Trice,  §  53,  n.  10 
S.  P.  Ender  v.  Scott,  §  55,  n,  1 
S.  P.  Humphreys  v.  Comline,  §  47, 

n.  14 
S.  P.  Joslin  V.  Coughlin,  g  49,  n.  3 
S.   P.    Moore  v.   McKinlay,  §  46, 

n.  1 
Sparks  V.  Missick,  g  48,  n.  12 
Spencer  v.  Cone,  §  9,  n.  12 
Speckler  v.  Marsh,  g  38,  n.  2 
Sprague  v.  Blake,  §  10,  n.  7 

V   ,  §  12.  n.  5 

Stadtfield  r.  Huntsman,  §  41, n.  17 
Stanley  v.  Gaylord,  §  2,  n.  1 
Startup  V.  Macdonaid,  §  27,  n.  6 


State  V.  Gaellard,  §  54,  n.  1 
Steam  Saw  Mill  A,  Lumber  Co.  v. 

(iittshall,  §  II,  n.  lU 
Steamship  Co.  v.    United  States, 

g  19,  n.  2 
Steel  Works  7j.  Dewey,  g  23,  n.  5 
Stephens  v.  Baird,  g  29,  n.  3 
Stewart  v.  Marnell,  'i  27,  n.  8 
Stone  V.  Browning,  g  10,  n.  3 

V. ,  g  11,  n.  13 

V.  Dennison,  g  8,  n.   1 

V.  ,  g8,  n.  3 

V.  Elberly,  g  2,  n.  3 

Storm  V.  Smith,  g  48,  n.  1 

V.  ,  g  4s,  n.  6 

Story  V.  Hamilton,  g  8,  n.  3 
Street  v.  Chapman,  g  52,  n.  9 
Strong  V.  Dods,  g  II,  n.  12 
Strouss  V.  Ross,  g  19,  n.   1 
Stubbs  V.  Lund,  j/  4"),  n.  3 
Suberv.  Pullin,  g  9.  n.  13 
Sullivan  v.  Byrne,  §  18,  n.  1 
Summers  v.  Vaughan,  g  55,  n.  38 
Sumner  v.  Adams,  g  19,  n.  2 

V.  Cotley,  g  40,  n.  3 

V.  Woods,  g  33,  n.  1 

V.  ,  g  40,  n.  3 

V. ,  g41,n    10 

Supple  V.  Gilmour,  g  28,  n.  2 
Sweet  V,  Bradley,  g  5-'),  n.  1 

V.  Colgate,  g  40,  n.  1 

V.  Shumway,  g  30,  n.  7 

V.  Titus,  g  34,  n.  1 

Swire  v.  Francis,  g  37,  n.  6 
Symonds  v.  Hall,  g  2,  n.  3 
Sypert  v.  Sawyer,  g  60,  n.  3 


T. 

Tasker  v.  Bartlett,  g  36,  n.  4 
Taymon  v.  Mitchell,  g  49,  n.  1 
Taylor  v.  Richardson,  g  24,  n.  2 

V.  Risley.  g  19,  n.  2 

V.  United  States,  g  19,  n.  2 

Tenny  v.  Cowles,  g  56,  n.  15 
Terhune  v.  Diver,  g  55,  n.  9 
Terrv  v.  Wheeler,  g  2,  n.  2 

'v.  ,  g  24,  n.  7 

Thayer  v.  Brackett,  g  36,  n.  11 

V.  Luce,  g  14,  n.  4 

r.  ,  g  16,  n.  1 

Thetford  v.  llubbard,  g  36,  n.  8 
Thomas  v.  Simpson,  g  52,  n.  19 

V.  Shoemaker,  g  27,  n.  2 

Thompson  v.  Alger,  g  12,  n.  5 


XXIV 


Table  of  Cases. 


Thompson  v.  Alger,  §  10,  n.  7 

V.  Ashton,  I  47,  n.  10. 

V.  — — ,  §  -'4,  11.  5 

V.  Blanchai-d,  §  29,  n.  2 

V.  Con  over,  §  l!  I ,  n.  2 

V.  Liiul-ilev,  §  54,  n.  1 

V.  Walker,  §  40,  n.  3 

Thomson-Houston  Electric  Co.  v. 
Brush-Swan  Electric  Light  & 
Power  Co.,  §  o8,  n.  a 
Thorenson    v.    Minneapolis    Har- 
vester Works,  §  59,  n.  1 1 

V.  ,  §  r.2,  n.  33 

Thome  v.  McVeigh,  §  50,  n.  7 

V.  ,  §  .")5,  n.  1 1 

V.  Mosher,  g  36,  n.  4 

Thornton  v.  Kellv,  §  14,  n.  2 
Thrall  V.  Hill,  §4,  n.  1 
Thurston  v.  Spratt,  §  48,  n.  1 
Tibbettv.  Morton,  §  11,  n.  3 
Tibbets  v.  Towle,  §  33.  n.  1 
Tilton   Safe   Co.   v.  Tisdale,  §  52, 
n.  5 

V. ,  §  52,  n.  16 

Timrod  v.  Schoolbred,  §  54,  n.  1 
Tipton  V.  Triplett,  §  48,  n.  9 
Tisdale  v.  Harris,  §  9,  n.  4 
Towell  V.  Gatewood,  §  56,  n.  17 
Tower  v.  Tudhope,  §  11,  n.  6 
Townsend  v.  Hargraves,  §  8,  n.  1 

V. ,  §  31,  n.  1 

Torkelson  v.  Jorgenson,  g  55,  n.  7 
Towell  V.  Gatewood,  §  55,  n.  38 
Towsley  v.  Moore,  §  8,  n.  3 
Trevor  v.  Wood,  §  13,  n.  1 

V.  ,  §  3'.*,  n.  3 

Trigg  V.  Farris.  §  4S,  n.  3 
Trimmier  v.  Thomson,  §  54,  n.  4 
Trieber  v.  Andrews,  §  24,  n.  6 
Tucker  v.  Buffington,  g  24,  n.  3 

V.  Woods,  §  3,  n.  2 

Tufts  V.  Cleveland,  §  40,  n.  4 

V.    Plymouth    Gold    Mining 

Co.,  §  13,  n.  7 
Tunnell  v.  Osborne,  §  62,  n.  17 
TurnbuU  v.  Seymour,  §  62,  n.  12 
Turner  v.  Coolidge,  §  24,  n.  3 
Turner  v.  Moore,  §  32,  n.  1 
Tutle  V.  White,  §  48,  n.  1 
Tuttle  V.  Love,  §  3,  n.  2 
Tuxworth  V.  Moore,  §  24,  n.  6 
Tyler  v.  Strang,  §  22,  n.  7 
V. ,  §  22,  n.  11 

u. 

Ulrich  V.  Stohrer,  §  52,  n.  15 


United  States  v.  New  Orleans  Ry., 

§  40,  n.  18 

V.  ,  §  42,  n.  7 

Underwriters'     Wrecking    Co.    v. 

Underwriters,  §  34,  n.  6 
Upton   Mfg.   Co.  V.   Huiske,  §  62, 

n.  31 
Utley  V.  Donaldson,  §  3,  n.  2 


Van  Bracklin  v.  Fonda,  §  54,  n.  13 
Vandawalker  v.  Osmer,  §  56,  n.  9 
Van  Wren  v.  Flynn,  §  41,  n.  18 
Van  Wert  v.  Railway,  §  10,  n.  7 
Van  Wyck  v.  Allen,  §  51,  n.  1 
Vaughn  v.  Hopson,  §  40,  n.  10 
Vassar  v.  Camp,  §  39,  n.  3 
Vent  V.  Osgood,  §  2,  n.  4 
Vincent  v.  Germond,  g  12,  n.  5 
Voss  V.  McGuire,  §  50,  n.  1 
Vowter  V.  Griffin,  g  9,  n.  1 


w. 

Wagner  v.  Eggleston,  §  3,  n.  2 

V.  Hallack,  §  33,  n.  5 

Wait  V.  Green,  §  33,  n.  9 
Wakefield  v.  Lighgow,  §  32,  n.  6 
Walcott  V.  Mount,  g  52,  n.  5 

V. ,  §  53,  n.  4 

Walker  v.  Blake,  §  44,  n.  3 

V.  Mitchell,  §  41,  n.  2 

V.  Pue,  §  52,  n.  16 

Walsh  V.  Barton,  §  14,  n.  4 
Walter  v.  Cody,  §  52,  n.  1 

V.  Ross,  §  45,  n.  3 

Walton  V.  Cody,  §  52,  n.  2 
Wangler  v.  Franklin,  §  40,  n.  1 
Warden    v.   Sycamore    Harvester 

Co.,  §  57,  n.  16 
Warder  v.  Fisher,  §  57,  n.  1 
Warner  v.    Arctic   Ice   Co.,   §  53, 

n.  12 

V.  Porter,  §  39,  n.  6 

V.  Roth,  g  40,  n.  3 

V.  Van  Pelt,  §  55,  n.  13 

Warren  v.  Milliken,  g  24,  n.  6 
V.  Philadelphia   Coal   Co.,  § 

49,  n.  1 

V.  Wheeler,  §  59,  n.  3 

V.  Winne,  §  13,  n.  11 

Wartman  v.  Breed,  §  11,  n.  3 
Warwick  v.  Noakes,  §  32,  n.  6 
Waterbury  v.  Russell,  §  55,  h.  26 


Table  of  Cases. 


XIV 


Waterman  v.  Meigs,  §  9,  n.  10 
Waters  Heating  Co.  v.  Mansfield, 

§  3S,  n.  2 
Wat  kins  v.  Paino,  g  2'),  n.  1 
Watson  V.  Bunill,  ji;  .')4,  n.  7 
Walts  V.  Divor,  g  37   n.  8 
Wasljburn    Iron   Co.  v.   Russell,  § 

28,  n.  2 
Washington  v.  Johnson,  g  44,  n.  3 
Webber  v.  Davis,  §  5.'),  n.  14 
Webb  V.  Fairmaner,  §  27,  n.  2 
Webster  u.  Phoenix  Insurance  Co., 

§  57,  n.  4 
Wediligen  v.  Boston  Elastic  Fabric 

Co.,  §  34,  n.  1 
Weed  V.  Pago,  §  58.  n.  5 
Weeks  r.  Hull,  §  27,  n.  3 
Weigei-r.  Goukl,  §  52.  n.  18 
W'eimerv.  Clement,  ^  56,  n.  1 
Welsh  V.  Carter,  g  49.' n.  3 

V.  Gossler,  §  27.  n.  1 

V.  ,  g  30.  n.  8 

Wells  v.  Setwood,  §  61,n.  1 

V.  Spears.  §  5.").  n.  34 

Wendall  v.  Osborne,  §  57,  n.  16 

„. ,  §  62.  n.  19 

West  V.  Bolton,  §  33,  n.  1 

V.  ,  §  40,  n.  1 

West     Republic     Mining     Co.    v. 
Jones,  §  50,  n.  2 

V.  ,  §  50.  n.  3 

West  Stockton   Iron  Co.  v.  Niel- 

Ron,  §  4f),  n.  3 
Wethereli  v.  Neilson,  §  49,  n.  3 
Weybrich  v.  Harris,  §  59,  n.  6 
Wharton  v.  Mo.  Car  Foundry  Co., 
§27,  n.  10 

V.  0'  Hara,  §  59,  n.  3 

Wheeler  v.  Knaggs,  §  36,  n.  2 

V.  ,  §  36,  n.  5 

V.  Reed.  §  55,  n.  9 

— —  V.  Wheeler,  §  4,  n.  1 
Wheeler  &  Wilson  Mfg.  Co.  v.  Heil, 
§  41,  n.  9 

V.  Thompson,  §  61,  n.  6 

Wheelhouse  v.  Parr,  §  25,  n.  6 
Whitaker  v.  Eastwick,  §  48,  n.  1 
Whittaker  v.  Eastwood,  g  49,  n.  2 

V.  McCormick,  §  51,  u.  2 

V.  ,  §  53,  n.  4 

V.  Williams.  §29,  n.  5 

Whitcomb  v.  Whitney,  §  22,  n.  10 

V.  Woodworth,  g  41,  n.  15 

White  v.  Corliss,  §  39,  n.  2 

V.  Day,  §  18,  n.  1 

(.  Leighton,  jJ  37,  n.  6 

V.  Mann,  §  20,  n.  3 

V.  Miller,  g  52,  n.  4 


White  V.  Miller.  §  53,  n.  4 
Whitefield  v.  MeLeod,  g  .54,  n.  1 
Whitehead  <fe  .\therton  Mche.  Co., 
V.  Ryder,  g  55,  n.  23 

V.  ,  2  6 1 .  n .  7 

Whitehead  v.' Tuckett,  g  37,  n.  7 
Whiting  V.  Farraiid,  §  25,  n.  4 
Whitman  v.  Freese,  §  30,  n.  7 
Wliitmoie  v.  Gibbs,  §  9,  n.  1 
V.  Iron  Co  ,  §  52,  n.  18 

V.  Eaton.  §  33,  n.  1 

V.  ,  g  35,  n.  1 

V.  Harwood,  §  48,  n.  8 

V.  Sutton,  §  56,  n.  1 

Whittowsky  v.  Wa^-son,  g  5,  n.  3 
Whitewell  v.  Vincent,  ^  32,  n.  3 
Wii^hton  V.  Bowlev,  §  23,  n.  3 

v.  ,  §  25.  n.  4 

W^igtins  V.  Hunter,  ^  59.  n.  11 
Wilcox  0.  Hall,  §  52,'  n.  18 

.Silver  Plate  Co.  v.  Green,  §  25, 

n.  1 
Wilkinson  v.  Holiday,  g  22,  n.  1 

V. ,  ?  22,  n.  10 

V.  Holliday,  §  23,  n.  1 

Wilis  V.  Robinson,  g  35,  n.  2 
Williams  v.  Bacon,  §  14,  n.  4 

V.  Berry,  g  1.  n.  1 

V.  Getty,  g  37,  n.  7 

y.  Ingram,  g  47,  n.  13 

V.  Jordan,  g  14,  n.  3 

V.  Merle,  g  2,  n,  1 

V.  Miller,  g  2,  n.  3 

V.  Morris,  g  13,  n.  3 

Williamson  v.  .^amnions,  g  48,  n.  3 

V.  Summons,  g  48,  n.  1 

Willings  V.  Consequa,  g  57,  n.  8 
Willmott  V  Smith,  g  37.  n.  ^ 
Wilmot  y    Hurd,  g  55,  n.  36 
Wilson  V.  Crockett,  g  2,  n.  1 
V.  Marsh,  g  60,  n.  8 

V.  ,  g  60,  n.  9 

V.  Rudv,  g  62,  n.  45 

V.  Shackletord.  g  -19,  n,  3 

V.  Wadleigh,  g  37,  n.  4 

Winchester  v.  King,  g  40,  n.  21 
Windsor  v.  China,  g  27,  n.  3 
Winsor  v.  Lombard,  g  30,  n,  5 

I'.  ,  g  .Kt,  n.  6 

Wittowsky  v.  Wasson.  g  1,  n.  1 
Wolcott  v.  Mount,  g  .30,  "n.  5 
Wolf  V.  Dietzsch.  g  44,  n,  3 

V.  Marsh,  g  19,  n.  2 

Woodburn  v.  Woodburn,  g  34,  n.  1 
Wood  V.  Ashe,  g  54.  n.  4 

V.  .  g  6(t.  n.  8 

V.  Hitchcock,  g  36,  n.  11 

V.  Manley,  g  24,  n  6 


XXVI 


Table  of  Cases. 


Woodu.  Shultus,  §  Su 
Woodley  v.  Davis,  §  57,  n.  2 
Word  V.  Cavin,  §  48,  n.  3 
Worrall  v.  Munn,  §  16,  n.  2 
Worth  V.  McConnell,  §  62,  n.  6 
Worthy  v.  Johnson,  §  48,  n.  14 
Wren  v.  Wardlaw,  §  55,  n.  33 
Wright  V.  Barns,  ?  26,  n.  7 

V.  Hart,  §  49,  n.  1 

V. ,  §  52,  n.  5 

■         w.  Solomon,  §  37,  n.  7    • 

■ V.  Weed,  §  28.  n.  2 

V.  Weeks,  §  13,  u.  10 


Wright  V.  Weeks,  §  15,  n.  8 
Wyck  V.  Allen,  §  53,  n.  4 


York  Co.  Bank  v.  Stein,  §  37,  n.  7 
Young  u.  Blaisdell,  §  10,  n.  3 

V.  Kansas  Mfg.  Co.  §  35,  n.  1 

V.  Paul,  §  16,  n.  1 

Z. 

Zaleski  v.  Clark,  §  18,  n.  1 


PART    I. 

GENERAL   REQIHSITES    OF   CONTRACTS   OF   SALE. 


CHAPTER   L 

ESSENTIAL  ELEMENTS  OF  CONTRACT. 

Article  1. — Definition  and  Elements  of  Salb.     §§  1-6. 
CHAPTER   n. 

ELEMENTS  REQUIRED  BY  STATUTE. 

Article  2. — Statute  of  Frauds.     §§  7-16. 


CONDITIONAL   SALES. 


CHAPTER  I. 

essential  elements  of  contract. 
Article  1. — Definition  and  Elements  of  Sale. 

§  L  Definition. 

§  2.  Competent  Parties. 

§  3.  Mutual  Assent. 

§  4.  Subject  of  Sale. 

§  5.  Consideration. 

§  6.  Transfer  of  Property. 

§  i.  Definition.  Whether  a  sale  is  absolute  or 
conditional,  the  same  elements  are  essential,  for  in 
the  latter  class  of  sales  the  conditions  invariably  ap- 
ply to  some  of  the  essential  elements  of  an  absolute 
sale.  The  definition  of  a  sale  and  its  essential  ele- 
ments are  therefore  material  to  the  proper  consider- 
ation of  the  subject  of  conditional  sales. 

A  sale  may  be  defined  to  be  a  mutual  assent  by 
competent  parties  to  the  transfer  of  property  for  a 
determined  consideration  to  be  paid  therefor.^  The 
essential  elements  of  a  contract  of  sale  are  therefore — 
competent  parties  ;  mutual  assent ;  property  the  sub- 
ject of  sale,  the  transfer  thereof,  and  the  considera- 
tion to  be  paid  therefor. 

(1)  Wittowsky  v.  Wasson,  71  N.  C.  451  ;  Martin  v.  Adams,  104  Mass. 
262;  Smith  v.  Weaver,  90  111.  392;  Williams  v.  Berry,  8  How.  (U.  S.) 
544;  Mackanessu.  Long,  85  Penn.  St.  158;  Massey  v.  State,  74  Ind.  368. 

§  2.  Competent  Parties.  As  a  general  principle, 
no  one  can  acquire  a  better  title  to  property  than 

(3) 


4  Conditional  Sales. 

that  of  his  vendor,  however  innocent  he  may  he 
in  his  purchase.^  Nor  can  title  be  acquired  in  prop- 
erty which  has  been  lost  or  stolen ;  and  the  owner 
may  repossess  himself  of  the  same  if  found  in  the 
possession  of  the  finder,  thief,  or  their  vendee.^  Only 
the  owner,  his  agent  or  legal  representative,  can  give 
a  valid  title.  Administrators  or  executors,  officers 
of  courts  having  jurisdiction,  bailees,  mortgagees, 
pledgees,  or  their  assigns,  are  legal  representatives, 
but  can  convey  such  title  only  as  the  original  owner 
may  have  had.^ 

All  persons  competent  to  contract  may  buy.  Dis. 
abilities,  such  as  mental  or  legal,  will  not  render  the 
sale  absolutely  void,  but  voidable.*  Disabilities  may 
be  permanent,  as  idiocy  or  insanity ;  or  temporary, 
as  intemperance,  infancy,  or  coverture.  But  in  many 
states  the  disability  of  coverture  has  been  removed 
by  statute,  and  married  women  are  thereby  author- 
ized to  contract  as  though  feme  soles. 

(1)  Stanley  V.  Gaylord,  1  Cush.  (Mass.)  536;  Gilmore  v.  Newton,  9 
Allen  (Mass.),  171;  Bearce  v.  Bowker,  115  Mass.  129;  Moody  v.  Blake, 
117  Mass.  23;  Prime  v.  Cobb,  63  Me.  200;  Bryant  v.  Whitcher,  52 
N.  H.  158;  Curtis  v.  Cane,  32  Vt.  232;  Williams  v.  Merle,  11  Wend. 
(N.  Y.)  80;  Klein  v.  Sebald,  89  111.  540;  Wilson  v.  Crockett,  43  Mo.  218; 
McMahon  v.  Sloan,  12  Penn.  St.  229. 

(2)  HoflFmanv.  Carow,  20  Wend.  21;  22  Wend.  285;  Dame  v.  Bald- 
win, 8  Mass.  519;  Gilmore  v.  Newton,  9  Allen  (Mass.),  171 ;  Heckle  v. 
Lurvey,  101  Mass.  344;  Eolland  w.  Gundy,  5  Ohio,  202;  Curtis  u.  Cane, 
32  Vt.  232;  Pease  v.  Smith,  Gl  N.  Y.  477;  Brickenbridge  v.  McAflFee, 
54  Ind.  141 ;  McGrew  v.  Broder,  14  Martin  (La.),  17;  Beazeley  v.  Mitch- 
ell, 9  Ala.  780. 

(3)  Symonds  v.  Hall,  37  Me.  354;  Combs  v.  Gordon,  59  Me.  Ill; 
Bryant  v.  Whitcher  52  N.  H.  158;  Griffith  v.  Fowler,  18  Vt.  390;  San- 
born V.  Kittridge,  20  Vt.  640;  Champney  v.  Smith,  15  Gray  (Mass.),  512; 
Johnson  v.  Babcock,  8  Allen  (Mass.),  583;  DufFam  v.  Dean,  8  Cush. 
(Mass.)  41;  Williams  v.  Miller,  16  Conn.  144;  Bartholomew  v.  Warren, 
32  Conn.  102;  Stone  v.  Elberly,  1  Bay.  (S.  C.)  317;  Homesley  v.  Hogue, 
4  Jones  L.  (N.  C.)  481;  Avendale  v.  Morgan,  5  Sneed  (Tenn.),  703; 
Boggs  V.  Fowler,  16  Cal.  559. 


Essential  Elementa  of  Contract.  I 

(4)  TTovey  v.  Ilovey,  ')5  Me.  256;   Dennett  v.  Dennett,  44  N.  H.  531 
Mitchell  V.  Kingman,  5  Pick.  431  ;  Rice  v.  Peet,  15  John.s.  (X.  Y.)  .'^03 
Grant  v.  Thompson,  4  Conn.  203;  Shipman  v.  Horton,  17  Conn.  481 
Ventv.  Osgood,  19  Pick.  582;   French  v.  Ilickox,  8  Ohio,  214;   Bates  u. 
Ball,  72  111.  108. 

^  3.  Mutual  Assent.  Assent  of  competent  parties 
is  an  essential  element  of  all  contracts  or  agreements, 
and  the  assent  must  be  both  mutual  and  voluntary.^ 
But  this  assent  need  not  be  expressed,  but  may  be 
implied  from  the  language,  conversation,  or  conduct 
of  the  parties.^ 

If  a  proposition  to  sell  be  made  by  letter  or  tele- 
gram, its  acceptance  may  be  by  the  same  means ;  and 
conditional  propositions,  to  continue  in  force  for  a 
limited  time,  must  be  accepted  before  the  expiration 
of  the  time  designated. 

(1)  Lincoln  v.  Johnson,  43  Vt.  74;  Darden  v.  Lovelace,  52  Ala.  290; 
Gardner  v.  Lane,  12  Allen  (Mass.),  39;  Butler  v.  Thompson,  92  U.  S. 
412. 

(2)  Peckerell  v.  Rose,  87  111.  263;  Abbott  v.  Shephard.  48  N.  H.  16; 
Bruce  v.  Bishop,  43  Vt.  1(31  ;  Gowing  i».  Knowles,  118  Mass.  232;  Jen- 
ness  V.  Iron  Co.,  53  Me.  20;  Crocker  v.  New  London  R.  Co.,  24  Conn. 
262;  Carr  v.  Duval,  14  Pet.  (U.  S.)  77;  Snow  v.  Miles,  3  Cliff.  (U.  S.  C.  C.) 
608;  Utley  v.  Donaldson,  94  U.  S.  29.  See  also  Plant  Seed  Co.  v.  Hall, 
14  Kan.  553;  Tuttle  v.  Love,  7  Johns.  (N.  Y.)470;  Tucker  v.  Woods,  12 
Johns.  (N.  Y.)  190;  McKinley  v.  Watkins,  13  111.  140;  Maclay  v.  Har- 
vey, 90  111.  525;  Wagner  v.  Eggleston,  49  Mich.  218;  Salmon  v.  Web- 
ster, 4  Col.  353. 

^  4.  Subject  of  Sale.  To  constitute  a  sale,  there 
must  be  something  which  is  the  subject  of  sale.  A 
hope  or  expectation  of  means,  founded  on  a  right  in 
being,  may  be  the  subject  of  sale,  because  in  such 
case  there  is  a  potential  existence.  But  a  mere  pos- 
sibility or  contingency,  not  founded  upon  a  right  or 
coupled  with  an  interest,  can  not.^  If  at  the  time  of 
sale  the  subject  of  sale  has  ceased  to  exist  by  any 
cause,  there  would  be  no  sale,  and  if  the  price  had 
been  paid,  it  may  be  recovered.'- 


6  Conditional  Sales. 

(1)  Wheeler  v.  Wheeler,  2  Met.  (Ky.)  474;  Hutchinson  v.  Ford,  9 
Bush  (Ky.),  318;  Jones  v.  Richardson,  10  Mete.  (Mass.)  481;  Rice  v. 
Stone,  1  Allen  (Mass.),  566;  Henshaw  v.  Bank,  10  Gray  (Mass.),  571; 
Low  V.  Pew,  108  Mass.  350;  Thrall  v.  Hill,  110  Mass.  238;  Allen  v. 
Goodenow,  71  Me.  420;  Pierce  v.  Emery,  32  N.  H.  484. 

(2)  Benjamin  on  Sales,  §  76. 

§  5.  Consideration.  Price  is  an  element  of  every 
valid  sale,  and  must  be  either  determined  or  deter- 
minable. It  need  not  be  paid  down,  but  there  must 
be  an  agreement  to  pay.  In  the  absence  of  a  fixed 
price,  the  law  would  imply  a  promise  to  pay  as  much 
as  the  property  was  reasonably  worth. ^ 

If  the  parties  agree  that  the  price  of  the  goods  sold 
shall  be  fixed  by  the  valuation  of  third  parties  desig- 
nated by  them,  and  the  price  is  determined  by  them, 
this  becomes  a  part  of  the  contract,  and  both  parties 
are  bound  by  it.-  If  there  be  a  delivery  of  goods  in 
such  a  case,  and  the  vendee  shall  prevent  the  valua- 
tion agreed  upon — as  by  a  destruction  or  consumption 
of  the  goods — or  the  valuers  should  disagree,  the  ven- 
dor could  recover  their  value,  to  be  determined  by  a 

Where  a  quantity  of  wheat  was  sold  and  delivered, 
the  price  to  be  determined  by  the  quotations,  upon  a 
day  to  be  fixed  by  the  vendee,  and  the  Avheat  was  de- 
stroyed before  the  day  had  been  so  fixed,  but  the 
vendee  did  afterward  name  the  day,  it  was  held  that 
the  sale  was  valid,  and  that  the  vendor  was  entitled 
to  the  payment  of  the  price  as  fixed  by  the  agree- 
ment.^ So,  where  there  was  a  sale  of  the  rigging  of  a 
vessel,  to  be  paid  for  ninety  days  after  the  first  return 
trip,  and  the  vessel  was  lost,  it  was  held  that  the 
price  of  the  rigging  was  due  and  enforceable,  in  ninety 
days  after  the  time  usually  required  for  the  trip.^ 

(1)  James  v.  Muir,  33  Mich.  223;  Callaghan  v.  Myers,  89  HI.  56'^. 

(2)  Fuller  v.  Bean,  34  N.  H.  301 ;  Brown  v.  Bellows,  4  Pick.  189;  Nut- 


Essential  Elements  of  Contract.  7 

ting  V.  Dickinson,  8  Allen  (Mass.),  540;  Cunningham  v.  Ashbrook,  20 
Mo.  .053;  McCandlish  v.  Newman,  22  Penn.  St.  400;  Mason  v.  Piielps,  48 
Mich.  126;  Newlan  v.  Dunham,  60  111.  233;  Boss  v.  Veltum,  28  Minn. 
512. 

(3)  Wittowsky  v.  Wasson,  71  N.  C.  456;  Clarke  v.  Westrope,  18  C.  B. 
(Eng.)  765. 

(4)  McConnell  v.  Hughes,  29  Wis.  537. 

(5)  Randall  v.  Johnson,  59  Miss.  317. 

5  6.  Transfer  of  Property,  It  has  been  held  in 
some  cases  that  delivery,  as  between  the  vendor  and 
vendee,  is  not  essential  to  pass  title  to  the  property.^ 
However,  it  becomes  essential  if  the  delivery  by  the 
terms  of  sale  becomes  one  of  the  conditions  thereof — 
which  subject  is  more  fully  discussed  in  Article  6. 

(1)  Ilooban  v.  Bidwell,  16  Ohio,  509;   47  Am.  Dec.  386;   Griffin  v. 
Chubb,  7  Tex.  603 ;  57  Am.  Dec.  85. 


Conditional  Sales. 


CHAPTER  n. 

ELEMENTS    REQUIRED    BY   STATUTB. 

Article  2. — Statutes  of  Frauds. 

§     7.  Statutory  Provisions. 

§     8.  Aflfects  Remedy  only. 

§     9.  Application. 

§  10.  Acceptance  of  Goods. 

§  11.  Constructive  Acceptance. 

§  12.  Earnest  and  Part  Payment. 

§  13.  Form  of  Memorandum. 

§  14.  Parties  to  Memorandum. 

§  15.  Price  Designated  in  Memorandum. 

§  16.  Signing  of  Memorandum. 

5  7.  statutory  Provisions.  The  English  statute  of 
frauds,  which  may  be  found  substantially  in  the 
statutes  of  the  various  states  of  the  American  Union, 
and  is  applicable  to  the  class  of  sales  under  consid- 
eration, provided  that  contracts  not  to  be  performed 
within  a  year  from  the  making  thereof,  must  be  in 
writing ;  and  that  no  contract  for  the  sale  of  any 
goods,  wares  or  merchandise,  for  the  price  of  ten 
pounds  sterling,  or  upward,  shall  be  allowed  to  be 
good,  except  the  buyer  shall  accept  part  of  the  goods 
so  sold,  and  actually  receive  the  same,  or  give  some- 
thing in  earnest  to  bind  the  bargain,  or  in  part  pay- 
ment, or  that  some  note  or  memorandum  in  writing 
of  the  said  contract  be  made  and  signed  by  the  par- 
ties to  be  charged  by  such  contract,  or  their  agents 
thereto  lawfully  authorized. 

Thus,  in  all  states,  except  in  Pennsylvania  and 
Korth  Carolina,  no  action  can  bo  brought  to  charge 
any  person  upon  any  agreement  that  is  not  to  be  per- 


Elements  Required  by  SlatiUe.  9 

formed  within  one  3^ear  from  the  making  thereof,  un- 
less the  agreement,  or  some  memorandum  or  note 
thereof  is  in  writing,  and  signed  by  the  party  to  be 
charged  therewith,  or  by  some  other  person  there- 
unto by  him  hiwfuUy  authorized.  But  in  New  York, 
Michigan,  Wisconsin,  Minnesota,  Nebraska,  Cali- 
fornia, Oregon,  Nevada,  Washington,  Dakota,  Idaho, 
Montana,  Wyoming,  Utah,  Alabama,  and  Arizona, 
the  contract  to  be  within  the  statute  must  "by  its 
terms  "  indicate  that  it  is  not  to  be  performed  within 
a  year  from  the  making  thereof.  And  in  Delaware 
and  Alabama,  in  the  sale  of  personal  property,  he 
who  may  be  lawfully  authorized  to  sign  the  contract 
or  memorandum  for  the  party  to  be  charged,  must  be 
authorized  in  writing. 

Clause  16  of  the  English  statute  is  followed  in 
Colorado,  Connecticut,  Dakota,  Florida,  Georgia, 
Idaho,  Indiana,  Iowa,  Massachusetts,  Michigan, 
Minnesota,  Nebraska,  New  York,  South  Carolina, 
Wisconsin,  and  Wyoming ;  and  no  contract  for  the 
sale  of  goods,  wares,  and  merchandise  for  the  price 
of  fifty  dollars  or  more  is  valid,  except  the  buyer  ac- 
cept and  receive  ^Dart  of  the  goods  sold,  or  give  some, 
thing  in  earnest  to  bind  the  bargain,  or  in  part 
payment,  or  unless  some  note  or  memorandum  in 
writing  of  the  bargain  be  made  and  signed  by  the 
parties  to  be  charged  therewith,  or  their  agents  there- 
unto lawfully  authorized.  While  in  Maine,  New 
Jersey,  Missouri,  and  Arkansas  the  limit  is  thirty 
dollars;  in  New  Hampshire,  thirty-three  dollars;  in 
Arizona,  one  hundred  dollars ;  in  California  and 
Idaho,  two  hundred  dollars ;  in  Montana  and  Utah, 
three  hundred  dollars ;  in  Vermont,  forty  dollars ; 
and  in  Florida  and  Iowa  there  is  no  fixed  limitation 
as  to  value. 


10  Conditional  Sales. 

In  Greorgia,  it  is  specifically  provided  that  the  stat- 
ute shall  apply,  \vhethcr  the  goods,  the  subject  of 
sale,  are  in  esse  or  not ;  but  in  Iowa,  thissection  does 
not  apply  where  the  personal  property,  the  subject 
of  sale,  is  not,  at  the  time  of  the  contract,  owned  by 
the  vendor  and  ready  for  delivery,  but  labor,  skill,  or 
money  are  necessary  to  be  expended  in  producing  or 
procuring  the  same.  While  in  California  and  Da- 
kota, an  agreement  to  manufacture  a  thing  from  ma- 
terials furnished  by  the  manufacturer  or  by  another 
person,  is  excepted  from  the  provisions  of  the 
statute. 

And  it  is  also  provided,  in  New  York,  Indiana, 
Michigan,  Wisconsin,  Minnesota,  Nebraska,  Cali- 
fornia, Oregon,  Nevada,  Colorado,  Dakota,  Idaho, 
Montana,  Utah,  and  Arizona,  that  nothing  contained 
in  the  statute  of  frauds  should  abridge  the  powers  of 
a  court  to  compel  the  specific  performance  of  agree- 
ments partly  performed. 

§  8.  Affects  Remedy  only.  The  purpose  of  these 
statutes  is  to  prevent  fraud  and  falsehood,  by  requir- 
ing a  party  who  seeks  to  enforce  an  oral  contract,  to 
produce,  as  additional  evidence,  some  written  mem- 
orandum signed  by  the  party  sought  to  be  charged, 
or  proof  of  some  act  confirmatory  of  the  contract  re- 
lied on. 

They  do  not  declare  that  the  contract  shall  be  void 
or  illeofal  unless  certain  formalities  are  observed.  If 
executed,  the  effect  of  its  performance  on  the  rights 
of  the  parties  is  not  changed,  and  the  consideration 
may  be  recovered — the  statutes  afi'ecting  the  rem- 
edy only.^ 

Mr.  Browne,  in  his  work  on  "Statutes  of  Frauds," 
says :     "  The  operation,  then,  which  the  statute  has 


Elements  Required  hij  Statute.  11 

upon  a  contract  covered  by  it,  is  that  no  enforcement 
of  the  contract  can  be  had  while  the  requiremeut.s  of 
the  statute  remain  unsatisfied,  if  the  party  against 
whom  enforcement  is  sought  chooses  to  insist  upon 
this  defense ;  the  statute  does  not  make  the  contract 
illegal  or  void ;  a  contract  which  was  legal  and  ac- 
tionable before  the  statute,  is  legal  since  and  notwith- 
standing the  statute,  and  is  also  actionable  or  en- 
forceable if  the  making  of  the  contract  be  followed  by 
compliance  with  the  requirements  of  the  statute. 
Compliance  with  the  requirements  of  the  statute  does 
not  constitute  the  contract ;  the  statute  presupposes 
an  existing  lawful  contract,  the  enforcement  of  which 
is  suspended  till  the  statute  is  satisfied."-  Where 
the  contract  has  been  in  fact  completely  executed  on 
both  sides,  the  rights,  duties,  and  obligations  of  the 
parties  resulting  from  such  performance,  stand  un- 
affected by  the  statute.^ 

(1)  Townsend  v.  Hargraves,  118  Mass.  334;  Stone  v.  Dennison,  13 
Pick.  1 ;  Basford  V.  Pearson,  9  Allen,  387;  Nutting  v.  Dickinson.  8  Allen, 
540. 

(2)  Browne,  Statute  of  Frauds,  §  115. 

(3)  Stone  V.  Dennison,  13  Pick.  (Mass.)  1  ;  Mnshat  v.  Brivard.  4  Dev. 
(N.  C.)  73;  Ryan  v.  Tomlinson,  39  Cal.  639;  Jellison  v.  .lordan,  (>S  Me. 
373;  Middlesex  v.  Osgood,  4  Gray  (Mass.),  447;  Wood  v.  Shultus,  4  Ilun 
(N.  Y.),  309;  Day  v.  Railroad  Co.,  51  N.  Y.  583;  89  N.  Y.  616:  Story  v. 
Hamilton,  86  N.  Y.  616;  Towsley  v.  Moore,  30  Ohio  St.  184. 

§  9.  Application.  We  shall  only  have  to  do  with 
that  section  of  the  statute  covering  contracts  for  the 
sale  of  goods,  wares,  and  merchandise.  So  varied 
and  conflicting  have  been  the  decisions  as  to  just 
what  sales  the  statute  did  apply,  that  wo  do  not  here 
attempt  to  harmonize  them.  For  exam])le,  it  has 
been  held  that  sales  of  shares  of  stock,  choses  in  ac- 
tion, and  the  like,  are  not  within  the  statute.^  While, 
on  the  other  hand,  contracts  for  the  sale  of  bank-notes/ 


12  Conditional  Sales. 

promissory  notes,^  shares  of  stock  in  an  incorporated 
company,"*  wheat,^  cotton,*^  iron,  as  fast  as  manu- 
factured,' and  auction  sales,^  liave  each  been  held  to 
be  within  the  statute  of  frauds.  Contracts  for  the 
sale  of  goods,  wares,  and  merchandise,  are  not  ex- 
cluded from  the  operation  of  the  statute  of  frauds 
merely  because  they  are  executory.^  Nor  does  the 
mere  fact  that  the  articles  sold  are  not  to  be  deliv- 
ered immediately,  take  the  case  out  of  the  statute. ^'^ 
Or,  as  is  more  elaborately  stated  in  the  case  of  the 
Passaic  Mfg.  Co.  v.  Hoffman, ^^  a  contract  for  an  ar- 
ticle coming  under  the  general  denomination  of 
"goods,  wares,  or  merchandise,"  made  with  one  who 
manufactures  and  sells  that  kind  of  commodity  to  all 
who  traffic  in  it,  the  quantity  and  the  price  being 
agreed  upon,  is  a  contract  within  the  meaning  of  the 
statute  of  frauds,  whether  the  manufacturer  and  ven- 
dor has,  when  the  order  for  the  article  is  given,  the 
requisite  quantity  on  hand,  or  has  to  manufacture  it 
afterward.  But  if  what  is  clearly  contemplated  by 
the  contract  is  the  skill,  labor,  care,  or  knowledge  of 
the  one  who  fabricates  the  article,  or  if  the  article 
would  not  have  been  produced,  if  the  order  had  not 
been  given  for  it,  or  if,  when  produced,  it  is  unfitted 
for  sale  as  a  general  article  of  merchandise,  being 
adapted  only  for  use  by  the  person  ordering  it, 
then  the  contract  is  one  for  work  and  labor,  and  is 
not  within  the  statute  of  frauds. 

It  may  be  safely  said,  that  the  accepted  ruling  of 
our  courts  is  to  the  effect  that  an  agreement  to  manu- 
facture certain  articles  and  furnish  materials  is  not  a 
contract  for  the  sale  of  goods,  wares,  or  merchandise, 
and  therefore  not  within  the  statute  of  frauds. ^^  And 
the  same  rule  is  applied  where  either  labor,  skill,  or 
money  are,  by  the  terms  of  the  contract,  to  be  ex- 


Elements  Required  by  Statute.  13 

pended  in  producing  or  procuring  the  subject  of  salo.^^ 
A  contract  to  send  to  Europe  and  have  goods  made 
for  another,  has  been  held  not  to  be  within  the  stat- 
ute, for  it  is  a  contract  of  agency  and  not  of  sale." 

Where  a  sale  consists  of  a  number  of  articles  at 
the  same  time,  neither  of  which  is  of  the  price  lim- 
ited by  statute,  but  which  in  gross  exceed  that  sum, 
the  contract  is  deemed  to  be  entire,  and  to  fall  within 
the  provisions  of  the  statute.^^  But  where  goods  sold 
by  parol  are  to  be  delivered  within  a  year,  although 
the  price  is  not  to  be  paid  until  after  the  lapse  of  that 
time  from  the  date  of  the  sale,^*^  the  statute  would 
not  apply  if  the  delivery  in  fact  took  place  within  the 
year.-^'' 

(1)  Benj.  on  Sales,  §  111 ;  Whitmore  v.  Gibbs,  24  N.  H.  484;  Vowter 
V.  Griffin,  40  Ind.  593;   Hudson  v.  Weir,  29  Ala.  294. 

(2)  Riggs  V.  Magrauder,  2  Cranch  C.  Ct.  143. 

(3)  Baldwin  v.  Williams,  3  Mete.  (Mass.)  365. 

(4)  North  V.  Forest,  15  Conn.  400;  Southern  ln».  Co.  v.  Cole,  4  Fla. 
359;  Calvin  v.  Williams,  3  Har.  &  J.  (Md.)  38;  Tisdale  v.  Harris.  20  Pick. 
(Mass.)  9;  Fine  v.  Hornsby,  2  Mo.  App.  61. 

(.'))  Hooker  v.  Knob,  26  Wis.  511 ;  Nichols  v.  Mitchell,  30  Wis.  329. 

(6)  Bowers  v.  Anderson,  49  Ga.  143;  Grover  v.  Warfield,  50  Ga.  "'■44. 

(7)  Sawyer  v.  Ware,  36  Ala.  675. 

(8)  Sanderlin  v.  Trustees,  R.  M.  Charlt.  (Ga.)  551;  Davis  v.  Rowell,  2 
Pick.  (Mass.)  64;  Davis  v.  Robertson,  1  Treadw.  (S.  C.)  Const.  71. 

(9)  Cason  v.  ChuUy,  6  Ga.  554;  Edwards  v.  Grand  Trunk  R.  R.  Co.,  48 
Me.  379;  Crookshank  v.  Burrell,  18  Johns.  (N.  Y.)  58. 

(10)  Jackson  v.  Covert,  5  Wend.  (N.  Y.I  139;  Waterman  v.  Meigs,  4 
Cush.  (Mass.)  497. 

(11)  Passaic  Mfg.  Co.  v.  Hoffman,  3  Daly  (N.  Y.),  405. 

(12)  Allen  v.  Jarvis,  20  Conn.  38;  llightr.  Ripley,  19  Me.  137;  Mixer 
V.  Howarth,  21  Pick.  (Mass.)  205;  Spencer  v.  Cone,  1  Mete.  (Mass.)  283; 
Phillips  V.  McFarlane,  3  Minn.  109;  O'Neil  v.  Mining  Co.,  3  Nev.  141; 
Sewall  V.  Pitch,  8  Cow.  (N.  Y.)215;  Bronsou  v.  Wiman,  10  Barb.  (N.  Y.) 
406;  Donovan  v.  Wilson,  26  Barb.  138;  Parker  v.  Schenck,  28  Barb 
38;  Mead  V.  Case,  33  Barb.  202;  Roberts  v.  Vaughn,  3  Sandf.  (N.  Y.) 
1;  Parsons  v.  Loucks,  4  Robt.  (N.  Y.)  216;  Pitkin  r.  Noyes,  48  N.  H. 
294.. 

(13)  Bennett  v.  Nye,  4  Greene  (Iowa),  410;  Abbott  v.  Gilchrist,  38 
Me.  260;  Suber  v.  PuUin,  1  S.  C.  273. 


14  Conditional  Sales. 

(14)  Bird  v.  Muhlinbrink,  1  Rich.  (S.  C.)  199. 

(15)  Gilman  v.  Hill,  .-.G  N.  II.  311. 

(16)  Johnson  V.  Watson,  1  Ga.  348. 

(17)  Rakes  v.  Pope,  7  Ala.  161. 

5  10  Acceptance  of  Goods  under  the  Statutes  of 
Fraud.  We  have  seen  thcit,  under  certain  circum- 
stances, in  a  majority  of  the  states,  acceptance  of  the 
goods  and  chattels,  the  subject  of  sale,  is  essential. 
It  therefore  becomes  important  to  consider  what  acts 
of  the  vendee  amount  to  an  acceptance  within  the 
meaning  and  requirements  of  the  statute  of  frauds. 

Lord  Blackburn,^  commenting  on  the  English  stat- 
ute, says  :  "  If  we  seek  for  the  meaning  of  the  en- 
actment, judging  merely  from  its  words,  and  without 
reference  to  decisions,  it  seems  that  this  provision  is 
not  complied  with  unless  the  two  things  concur ;  the 
buyer  must  accept,  and  he  must  actually  receive, 
part  of  the  goods  ;  and  the  contract  will  not  be  good 
unless  he  does  both.  And  this  must  be  borne  in 
mind,  for  as  there  may  be  an  actual  receipt  without 
any  acceptance,  so  may  there  be  an  acceptance  with- 
out any  receipt.  In  the  absence  of  authority,  and 
judging  merely  from  the  ordinary  meaning  of  lan- 
guage, one  would  say  that  an  acceptance  of  part  of 
the  goods  is  an  assent  by  the  buyer,  meant  to  be  final, 
that  this  part  of  the  goods  is  to  be  taken  by  him  as 
his  property  under  the  contract,  and  as  so  far  satisfy- 
ing the  contract.  So  long  as  the  buyer  can,  without 
self-contradiction,  declare  that  the  goods  are  not  to 
be  taken  in  fulfillment  of  the  contract,  he  has  not  ac- 
cepted them.  And  it  is  immaterial  whether  his  re- 
fusal to  take  the  goods  be  unreasonable  or  not.  If  he 
refuses  the  goods,  assigning  grounds  false  or  frivo- 
lous, or  assigning  no  reason  at  all,  it  is  still  clear  that 
he  does  not  accept  the  goods,  and  the  question  is  not 


Uleinenls  Required  by  Statute.  16 

whether  he  ought  to  accept,  but  whether  he  has  ac- 
cepted them.  The  question  of  acceptance  or  not  is  a 
question  as  to  what  was  the  intention  of  the  buyer,  as 
signified  by  his  outward  acts.  The  receipt  of  part  of 
the  goods  is  the  taking  possession  of  them.  Wlicn 
the  seller  gives  to  the  buyer  the  actual  control  of  the 
goods,  and  the  buyer  accepts  such  control,  he  has 
actually  received  them."- 

To  satisfy  the  statute  there  must  be  a  delivery  of 
the  goods  by  the  vendor,  with  an  intent  of  vesting 
the  right  of  possession  in  the  vendee ;  and  there 
must  be  an  actual  acceptance  by  the  latter,  with  an 
intention  of  taking  the  possession  as  owner.^  No  act 
of  the  vendor  alone,  in  however  strict  conformity  to 
the  terms  of  the  contract,  will  satisfy  the  statute.* 
There  must  be  some  acts  of  the  vendee ;  mere  words 
constituting  part  of  the  original  contract  do  not  con- 
stitute an  acceptance.^  Neither  is  a  mere  delivery 
sufficient;  there  must  further  be  an  acceptance  and 
receipt  of  the  vendee,  else  he  will  not  be  bound. ^  It 
is  well  established  that  the  acceptance  and  receipt 
need  not  be  simultaneous  with  the  verbal  contract  of 
sale  ;  it  is  sufficient  if  they  take  place  within  a  rea- 
sonable time  afterward.'  And  the  acceptance  may 
be  by  sample,  if  the  particular  sample  accepted  is 
taken  from  and  diminishes  the  bulk  of  the  goods  to 
be  finally  delivered ;  but  otherwise,  if  the  sample  is 
considered  only  a  specimen,  and  forms  no  part  of  the 
goods  sold.^ 

(1)  Blackburn  on  Sales,  22,  23. 

(2)  Maxwell  v.  Brown,  39  Me.  98;  Rogers  v.  Phillips,  40  X.  Y.  ■)19; 
Prescolt  V.  Locke,  51  N.  II.  94;  Gibbs  v.  Benjamin,  45  Vt.  124;  Knight 
V.  Mann,  118  Mass,  143;  Culkins  v.  Ilellman,  47  N.  Y.  449. 

(3)  Phillips  V.  Bistolli,  2  B.  <&  C.  511 ;  Knight  v.  Mann,  118  Mass.  143; 
Remick  v.  Sanford,  120  Mass.  316;  Hewes  v.  Jordan,  39  Md.  479;  Stone 
V.  Browning,  51  N.  Y.  211 ;  Gray  v.  Davis,  10  N.  Y.  285;  Marsh  v.  Rousei, 


16  Conditional  Sales. 

44  N.  Y.  643;  Shepherd  v.  Prossey,  32  N.  IT.  55;  Young  v.  Elaisdell,  60 
Me.  272;  Bowers  v.  Anderson,  49  Ga.  143;  Dooley  v.  Elbert,  47  Mich. 
615;  Dole  v.  Stimpson,  21  Pick.  3S4. 

(4)  Hawley  v.  Keeler,  53  N.  Y.  114;  Messer  v.  Woodman,  22  N.  H. 
172.  182. 

(5)  Shepherd  v.  Pressey,  32  N.  H.  57 ;  Bowers  v.  Anderson,  49  Ga.  143. 

(6)  Maxwell  v.  Brown,  39  Me.  101;  Edwards  v.  Grand  Trunk  Ry.  Co  , 
54  Me.  Ill;  Denny  v.  Williams,  5  Allen,  3;  Johnson  v.  Cuttle,  105  Mass. 
449 ;  Hcwos  v.  Jordan,  39  Md.  473. 

(7)  Bu.sh  V.  Holmes,  53  Me.  417;  Marsh  v.  Hyde,  3  Gray,  331 ;  Damon 
V.  Osborn,  1  Pick.  480;  Davis  v.  Moore,  13  Me.  424;  Richardson  v. 
Squires,  37  Vt.  640;  Thompson  v.  Alger,  12  Met.  43');  Chapin  v. 
Patter,  1  Hilton  (N.  Y.),  366;  Sale  v.  Darragh,  2  Hilton,  184;  Van 
Wertv.  Ry.,  67  N.  Y.  538;  Sprague  v.  Blake,  20  Wend.  61;  McCarthy 
V.  Nash,  14  Minn.  127;  Pinkham  v.  Mattox,  53  N.  H.  604;  Hewes  v. 
Jordan,  39  Md.  473;  Amson  v.  Dreher,  35  Wis.  615;  Phillips  v.  Ocmul- 
gee  Mills,  55  Ga.  633;  Buckingham  v.  Osborne,  44  Conn.  133. 

(8)  Davis  V.  Eastman,  1  Allen,  422;  Bush  v.  Holmes,  53  Me.  418;  Pratt 
V.  Chasft,  40  Me.  2«9;  Atwood  v.  Lucas,  53  Me.  508;  Danforth  v.  Walker, 
40  Vt.  257. 

5  IL  Constructive  Acceptance.  The  acceptance  of 
the  goods,  or  a  part  of  them,  as  required  by  the  stat- 
ute, may  be  constructive  only,  and  the  question 
whether  the  facts  proven  amount  to  a  constructive 
acceptance  is  one  of  fact  for  the  jury,  not  a  matter  of 
law  for  the  court.^  The  acceptance  must  be  clear 
and  unequivocal,^  but  it  is  a  question  for  the  jury 
whether,  under  all  the  circumstances,  the  acts  which 
the  vendee  does,  or  forbears  to  do,  amount  to  an  ac- 
ceptance.^ If,  however,  the  facts  are  not  in  dispute, 
it  belongs  to  the  court  to  determine  their  legal  effect.* 
And  it  is  said  that  it  "is  for  the  court  to  withold  the 
facts  from  the  jury,  when  they  arc  not  such  as  can  in 
law  warrant  finding  an  acceptance ;  and  this  includes 
cases  where,  though  the  court  might  admit  that  there 
was  a  scintilla  of  evidence  tending  to  show  an  ac- 
ceptance, they  would  still  feel  bound  to  set  aside  a 
verdict  finding  an  acceptance  on  that  evidence."  ^  A 
constructive   acceptance   may  be  inferred  when  the 


Elements  Required  f>i/  Statute.  17 

vendee  deals  with  the  goods  as  his  own,  and  does 
that  which  he  would  be  authorized  to  do  if  the 
owner,  but  not  otherwise.''  As  the  taking  possession 
of  a  bill  of  ladino,7  marking,  or  permitting  another 
to  mark  goods  with  the  name  of  the  vendee,*  accept- 
ance of  an  order  given  by  the  vendor  upon  his  agent 
to  deliver  the  property,  and  which  order  the  agent 
recognizes  and  accepts,  have  been  held  to  be  con- 
structive acceptance.^  And  it  has  been  held  that  the 
acceptance  of  a  part  of  the  goods  takes  the  case  out 
of  the  statute,  although  a  portion  is  still  to  be 
manufactured.^"  "  But,  in  order  to  take  the  contract 
out  of  the  operation  of  the  statute  of  frauds,  on  the 
ground  of  acceptance  of  the  goods,  or  a  portion  of 
them,  there  must  be  acts  of  such  a  character  as  to 
place  the  property  unequivocally  within  the  power 
of  the  vendee  as  the  absolute  owner,  discharging  all 
lien  for  the  price.""  Delivery  of  the  goods  to  a 
designated  common  carrier  would  constitute  a  receipt 
by  the  vendee,  but  would  not  usually  constitute  an 
acceptance  of  the  goods. ^-  So  also  it  has  been  held 
that  the  delivery  of  the  goods  to  the  vendee,  and  the 
unpacking  of  them  by  him,  are  not  sufficient  accept- 
ance, if  it  appear  that  he  has  taken  them  into  his 
possession  and  kept  them  for  no  greater  time  than 
was  reasonably  necessary  to  enable  him  to  examine 
their  quantity  and  quality,  and  to  declare  his  ap- 
proval or  disapproval  of  them.^^  There  is  no  accept- 
ance, unless  the  vendee  has  exercised  his  option  to 
receive  the  goods  sold,  or  not,  or  has  done  something 
to  deprive  him  of  his  option.^' 

(1)  Eden  v.  Dudley,  1  Q.  B.  (Eng.)  302;  Bushell  v.  Wheeler,  15  Q.  B- 
442;  Piiikhara  v.  Mattox,  53  N.  H.  605;  Simpson  v.  Krumdick,  2S  Minn. 
352;    Frostburg  Mining  Co.  v.  New  England  Glass  Co.,  9  Cush.   US; 


18  Conditional  Sales. 

Borrowscale  v.  Bosworth,  99  Mass.  381 ;   Sawyer  v.  Xichols,  40  Me.  212; 
Garfield  v.  Paris,  96  U.  S.  5o7. 

(2)  Prescott  v.  Locke,  51  N.  H.  94;  Snow  v.  Warner,  10  Met.  136; 
Denny  V.  Williams,  5  Allen,  3;  Dale  v.  Rtimpson,  21  Pick.  3S4;  Boyn- 
ton  V.  Veazie,  24  Me.  286;  Gibson  v.  Stevens,  8  How.  (U.  S.)  384. 

(3)  Tibbett  v.  Morton,  15  Q.  B.  428;  Rappleye  v.  Adie,  65  Barb.  589; 
Sawyer  v.  Nichols,  40  Me.  212;  Bailey  v.  Ogden,  3  Johns.  399,  420;  Wart- 
man  V.  Breed,  117  Mass.  18. 

(4)  Shepherd  v.  Pressey,  32  N.  H.  56. 

(5)  Browne,  Stat.  Frauds,  §  321 ;  Denny  v.  Williams,'5  Allen,  5;  How- 
ard V.  Borden,  13  Allen,  299. 

(6)  Parker  v.  Wallis,  5  E.  &  B.  21 ;  Chapin  v.  Rogers,  1  East,  195; 
Pinkham  v.  Mattox,  53  N.  H.  604;  Phillips  u.  Ocmulgee  Mills,  55  Ga. 
633;  Dallard  v.  Potts,  6  Allen  (N.  B.),  443 ;  Phillips  v.  Merritt,  2  U.  S. 
C.  P.  513;   Tower  v.  Tudhope,  37  U.  S.  Q.  B.  200. 

(7)  Currier  v.  Anderson,  3  E.  &  E.  (Eng.)  592;  Quintard  v.  Bacon,  99 
Mass.  185. 

(8)  Bill  V.  Bament,  9  M.  &  W.  (Eng.)  36;  Baldey  v.  Parker,  2  B.  & 
C.  37;  Rappleye  u.  Adie,  65  Barb.  589;  Dyer  v.  Libby,  61  Me.  45. 

(9)  Sahlman  v.  Mills,  3  Strob.  (S.  C.)  384;  51  Am.  Dec.  630. 

(10)  Gault  V.  Brown,  48  N.  H.  183;  Marsh  v.  Hyde,  3  Gray  (Mass.), 
331 ;  Ross  v.  Welsh,  11  Gray,  235  ;  Steam  Saw  Mill  and  Lumber  Co.  v. 
Gittshall,  3  Col.  8. 

(11)  Marsh  v.  Rouse,  44  N.  Y.  643. 

(12)  Benj.  on  Sales,  181;  Dawes  v.  Peck,  8  T.  R.  (Eng.)  330;  Dunlap 
V.  Lambert,  6  CI.  &  F.  (Eng.)  600;  Norman  v.  Phillips,  14  M.  &  W.  277; 
Smith  V.  Hudson,  6  B.  &  S.  (Eng.)  431 ;  Cross  v.  O'Donnell,  44  N.  Y. 
661;  Caulkins  v.  Hellman,  47  N.  Y.  449;  Everetts  v.  Parks,  62  Barb. 
(N.  Y.)  9;  Magruder  V.  Gage,  33  Md.  344;  Putman  v.  Tillottson,  13  Met. 
(Mass.)  517;  Merchant  v.  Chapman,  4  Allen  (Mass.),  362;  Foster  v. 
Rockwell,  104  Mass.  167;  Strong  v.  Dods,  47  Vt.  348;  Cobb  v.  Arundell, 
26  Wis.  553. 

(13)  Hewess  v.  Jordan,  39  Md.  472;  Stone  v.  Browning,  52  N.  Y.  211  ; 
Heermace  v.  Taylor,  14  Hun,  149. 

(14)  Gilman  v.  Hill,  36  N.  IT.  311,  321  ;  Shepherd  v.  Pressey,  32  N.  H. 
55;  Belt  v.  Marriott,  9  Gill,  331 ;  Gorham  v.  Fisher,  30  Vt.  428. 

§  12.  Earnest  and  Part  Payment.  A  verbal  contract 
will  be  valid,  and  proof  of  it  competent,  if  something 
in  earnest  or  part  payment  of  the  price  be  given. 
This  was  recognized  by  the  common  law,  and  the 
statute  has  not  changed  the  rule.  The  payment  may 
be  shown  by  parol  evidence,  but  proof  of  tender  is  not 
sufficient.    There  must  be  an  actual  acceptance  of  the 


ElemenlH  Required  by  Statute.  19 

money  tendered,  by  the  vendor.^  It  is  not  sufficient 
that  money  be  deposited  with  a  third  person,  to  be 
paid  to  either  party  in  case  of  a  breach  of  contract 
by  the  other.-  The  payment  must  be  money  or  its 
equivalent — in  other  words,  something  of  value — 
though  the  amount  be  immaterial.^ 

With  the  exception  of  the  State  of  New  York,^ 
the  time  of  payment  is  not  essential.  It  may  be 
made  at  the  time  of  the  sale  or  afterward,^  by  the 
vendee,  or  his  agent  acting  within  the  scope  of  his 
authority.*^ 

(1)  Edgerton  v.  Hoge,  41  Vt.  676;  Ilawley  v.  Keeler,  53  N.  Y.  114; 
Hicks  V.  Cleveland,  48  N.  Y.  84. 

(2)  Howe  V.  Hayward,  108  Miss.  54;  II  Am.  Rep.  306;  Xoakes  u. 
Morey,  30  Ind.  103. 

(3)  Browne  on  Statute  of  Frauds,  §  341 ;  Artcher  v.  Zeh,  5  Hill  (N. 
Y.),200. 

(4)  R.  S.  of  N.  Y.,  part  11  C.  7.  title  1 1,  §  3,  Vol.  3,  p.  2328. 

(5)  Thompson  v.  Alger,  12  Met.  435;  Davis  v.  Moore,  13  Met.  424; 
Gault  V.  Brown,  47  N.  H.  183,  189;  Vincent  v.  Germond,  11  Johns.  283;' 
Sprague  v.  Blake,  20  Wend.  61. 

(6)  Hawley  v.  Keeler,  53  N.  Y.  114. 

5  13.  Memorandum — its  Form.  If  the  price  exceed 
the  limit  provided  by  statute,  or — where  no  price  is 
fixed — if  the  value  be  clearly  proven  to  be  worth  that 
sum,  the  statute  requires  evidence  that  the  agree- 
ment, or  some  note  or  memorandum  thereof  be  in 
writing,  and  subscribed  by  the  party  to  be  charged 
thereby,  or  his  lawful  agent,  unless  part  payment  or 
delivery  with  acceptance  is  shown.  It  therefore  be- 
comes essential  to  ascertain  just  what  characteristics 
that  memorandum  must  possess.  The  form  of  the 
memorandum  is  not  limited  by  statute ;  it  may  con- 
sist of  a  telegram,^  or  letter,'-  a  receipt  for  money,^  a 
bill  of  parcels,^  or  a  stated  account,  in  which  the  ven- 
dee  charged   himself  witli  goods  received,^  or   the 


20  Conditional  Sales. 

return  of  a  sheriff  on  execution,*^  or  a  vote  of  a  cor- 
poration entered  on  their  records,  signed  by  their 
clerk,^  or  a  written  proposition,  if  supported  by  oral 
evidence  of  acceptance.^ 

Any  number  of  papers  may  be  taken  together  to 
make  out  the  note  or  memorandum,  and  it  matters 
not  how  informal  they  are  if  the  statute  is  substan- 
tially complied  with ;  but  where  several  papers  are 
resorted  to,  each  must  be  subscribed  by  the  party  to 
be  charged,  or  imported  by  reference  or  annexation 
into  one  that  is,  leaving  nothing  to  be  supplied  by 
jmrol  to  complete  the  memorandum  except  evidence 
of  the  identity  of  the  paper.°  The  memorandum 
must  be  complete,  so  far  as  that  all  elements  of  the 
contract  or  engagement  on  the  part  of  the  party 
sought  to  be  charged,  must  be  stated,^°  or  legally 
presumable  by  what  is  stated." 

( 1 )  Trevor  v.  Woods,  36  N.  Y.  307. 

(2)  Georgia  Refining  Co.  v.  Augusta  Oil  Co.,  74  Ga.  497;  Ashcroft  v. 
Butterworth,  136  Mass.  511  ;  Otwell  v.  Miller,  6  Md.  10. 

(3)  Barickman  v.  Kuykendall,  6  Blackf.  (Ind.)  21 ;  Ellis  v.  Deadman, 
4  Bibb  (Ky.)  466;  Williams  v.  Morris,  95  U.  S.  444. 

(4)  Batturs  v.  Sellers,  5  Hart  &  J.  (Md.)  117;  Hawkins  v.  Chase,  19 
Pick.  (Mass.)  502. 

(5)  Barry  v.  Coombe,  1  Pet.  (U.  S.)  640;  Bourland  v.  Peoria,  16  111. 
638. 

(6)  Hanson  v.  Barnes,  3  Gill  &  J.  (Md.)  359;  Fenwick  v.  Floyd,  1 
Harr.  &.  G.  (Md.)  172;  Barney  v.  Patterson,  6  Harr.  k  J.  (Md.)  182; 
Elfe  V.  Gadsden,  2  Rich  (S.  C.)  Law,  373;  Nichal  v.  Ridley,  5  Yerg. 
(Tenn.)  63. 

(7)  Tufts  V.  Plymouth  Gold  Mining  Co.,  14  Allen  (Mass.),  407 ;  John- 
son V.  Trinity  Ch.  Soc,  11  Allen,  123;  Chase  v.  City  of  Lowell,  7  Gray 
(Mass.),  33;  Rhoads  v.  Castner,  12  Allen  (Mass.),  130;  Grimes  v.  Hamil- 
ton Co.,  37  Iowa,  290. 

(8)  Sanborn  v.  Flagler,  9  Allen  (Mass.),  474;  Himrod  Furnace  Co.  v. 
Cleveland  and  Mahoning  R.  R.  Co.,  22  Ohio  St.  451 ;  Argus  Co.  v.  Mayor 
of  Albany,  55  N.  Y.  495. 

(9)  Abbott's  Trial  Evidence,  p.  293. 

(10)  Wright  V.  Weeks,  25  N.  Y.  153. 

(11)  Warren  V   Winne,  2  Lans.  209. 


Mements  Required  hy  Statute.  21 

5  14.  Parties.  It  is  necessary  that  the  memo- 
randum should  show  who  are  the  parties  to  the  con- 
tract, by  some  reference  sufficient  to  identify  them.^ 
The  identification,  however,  is  sufficient  if,  in  addi- 
tion to  the  signature  of  the  party  to  be  charged,  it 
appear  with  reasonable  certainty  who  the  other  party 
to  the  contract  is ;-  thus,  a  letter  addressed  to  the 
vendor  and  signed  by  the  vendee,"'  even  though  the 
letter  be  addressed  to  and  received  by  the  agent  of 
the  vendor.^  The  parties  may  even  be  designated 
by  their  initials,'^  "  and  although  the  authorities  are 
consistent  in  requiring  that  the  memorandum  should 
show  who  are  the  parties  to  the  contract,  it  suffices 
if  this  appear  by  description  instead  of  name,  parol 
evidence  being  admissible  to  apply  the  description. 


"6 


(1)  Browne  on  Statute  of  Frauds,  §  372;  Benjamin  on  Sales,  §  234. 

(2)  Grafton  v.  Cummings,  7  Rep.  545;  Thornton  v.  Kelly,  11  R.  1.  498; 
Gowen  v.  Klous,  101  Mass.  449. 

(3)  Jacob  V.  Kirk,  2  Moo.  k  R.  221  ;  Allen  v.  Bennet,  3  Taunt.   169; 
Williams  v.  Jordan,  6  Ch.  Div.  517. 

(4)  Batpman  v.  Phillips,  15  East,  272;  Williams  v.   Bacon,  2  Gray 
(Mass.),  387 ;  Thayer  v.  Luce,  22  Ohio  St.  62;   Walsh  v.  Barton,  24  Ohio 

•St.  28. 

(5)  Stilmon  Falls  Mfg.  Co.  v.  Goddard,  14  How.  (U.  S.)  446. 

(6)  Benjamin  on  Sales,  §  237. 

§  15.  Price.  "  It  is  plainly  deducible  from  the  de- 
cisions, that  so  far  as  the  price  is  concerned,  the  rule 
of  law  is,  that  where  there  is  no  actual  agreement  as 
to  price,  the  note  of  the  bargain  is  sufficient,  even 
though  silent  as  to  the  price,  because  the  law  sup- 
plies the  deficiency  by  importing  into  the  bargain  a 
promise  by  the  buyer  to  pay  a  reasonable  price. 
iBut  the  law  only  does  this  in  the  absence  of  an 
agreement ;  and,  therefore,  where  the  price  is  fixed  by 
mutual  consent,  that  price  is  part  of  the  bargain,  and 
must  be  shown  in  writing  in  order  to  satisfy  the 


22  Conditional  Sales. 

statute?;  and,  finally,  that  parol  evidence  is  admis- 
sible to  show  that  a  price  was  actually  agreed  on,  in 
order  to  establish  the  insufficiency  of  a  memorandum 
which  is  silent  as  to  price."  ^  The  price  must  be 
stated  in  the  memorandum  in  words  or  figures  which 
clearly  indicate,  as  applied  to  the  subject,  what  that 
price  is.  If  the  figures  or  letters,  or  both,  used  in 
the  memorandum,  do  in  fact,  and  in  the  light  of  a 
prevailing  usage,  afi^ord  this  information,  the  memo- 
randum to  that  extent  is  sufficient.'- 

"  It  is  obvious  that  the  statute  will  be  sa,tisfied  by 
a  statement  as  to  what  the  parties  stipulated  was 
the  price  to  be  paid,  although  they  mentioned  no 
specific  sum ;  as,  for  instance,  if  the  agreement  is  to 
pay  a  price  to  be  settled  by  arbitration,"^  or  to  pay 
the  same  for  which  the  property  had  been  previously 
purchased.^  It  has  been  held  that  an  order  for 
goods,  '  on  moderate  terms,'  sufficiently  expresses  the 
amount  to  be  paid,'^  that  being  the  stipulation  made 
by  the  parties."^  If  the  memorandum  be  silent  as 
to  the  time  of  payment,  a  cash  sale  will  be  pre- 
sumed."^ If  credit  is  given,  it  is  one  of  the  essential 
terms  of  the  contract,  and  must  appear  in  the  memo- 
randum.^ But  it  is  not  material  that  it  should  appear 
in  the  memorandum,  whether  the  deferred  payments 
are  to  be  with  interest.^ 

(1)  Benjamin  on  Sales,  ^  249. 

(2)  Govven   v.   Klous,    101    Mass.    449,    454;    Browne   on   Statute   of 
Frauds,  §  380. 

(3)  Cooth  V.  Jackson,  6  Ves.  12;  Brown  v.  Bellows,  49  Pick.  (Mass.) 

178. 

(4)  Atwood  V.  Cobb,  16  Pick.  (Mass.)  227. 

(5)  Ashcroft  v.  Morrin,  4  Man.  &  G.  450. 

(6)  Browne  on  Statute  of  Frauds,  §  378. 

(7)  Fessenden  v.  Mussey,  U  Gush.  (Mass.)  127.  See  §  33  on  Cash  Pay- 
ment. 

(8)  Norton  v.  Dean,  13  Mete.  (Mass.^  385;  Davis  v.  Shields,  2b  Wend. 


Elements  Jicquired  by  Statute.  23 

(N.  Y.)341,  McFarson's  Appeal,  11  Penn.  St.  503;  Sales  v.  Hickman, 
20  Penn.  St.  180;  Buck  v.  Pickwell,  27  Vt.  157;  Ellis  v.  Deadman,  4 
Bibb  (Ky.),  466;  Parker  v.  Bodley,  4  Bibb  (Ky.),  102;  Elfe  v.  Gadsden, 
2  Rich.  (S.  C.)  Law,  373;  Wright  v.  Week.s,  3  Bcsw.  (N.  Y.)  372. 

(9)  Atwood  V.  Cobb,  16  Pick.  (Mass  )  227;  Neufville  u.  Stuart,  1  Hill. 
(S.  C.)  Eq.  159. 

§  16.  Signing.  Whatever  be  the  form  of  memo- 
randum, the  statute  requires  that  it  be  signed  b}'  the 
party  to  be  charged,  or  his  agent,  and  the  contract  is 
good  or  not  at  the  election  of  the  party  who  has  not 
signed  ii,^  if  accepted  by  him.  The  signature  re- 
quired must  be  some  mark  or  emblem  intended  to 
denote  a  signature,  and  although  the  memorandum 
be  written  out  with  the  party's  own  hand,  there  must 
still  be  a  signature." 

The  signature  may  consist  of  the  mark  of  the 
party,-''  or  his  initials.'*  And,  in  the  absence  of  a 
statutory  provision  requiring  an  actual  manual  sub- 
scription, the  signature  may  be  in  printing,  or  by 
stamp,  if  there  be  sufficient  evidence  of  its  adoption 
as  such  by  the  party  to  be  charged,^  or  it  may  be  writ- 
ten with  lead  pencil.'' 

The  location  of  the  signature  is  immaterial — it  may 
be  in  the  body  of  the  paper,  or  at  the  beginning  or 
end — provided  it  be  done  with  the  intention  of  obli- 
gating." It  may  even  be  made  by  a  third  party,  at 
the  request  and  in  the  presence  of  the  party  to  be 
charged.^ 

As  provided  by  statute,  the  memorandum  may  be 
signed  by  the  duly  authorized  agent  of  the  party  to 
be  charged.  The  agent  may  be  a  general  agent  or  one 
expressly  appointed,  and  the  signing  by  a  stranger 
is  sufficient,  if  afterward  ratified.''  A  broker,  or  auc- 
tioneer, is  regarded  as  the  agent  of  both  parties,  and 
a  memorandum  made  and  signed  by  him  at  the  time 
of  sale  is  sufficient. ^'^ 


24  Cotuillional  »iat6\s. 

(1)  Reuss  V.  Picksley  R.  R.,  1  Ex.  (Eng.)  342;  Barstow  v.  Gray,  3  Me. 
409;  Railroad  v.  Evans,  6  Gray  (Mass. )  25;  Dressel  v.  Jordan,  104  Mass. 
412;  Davis  v.  Shields,  26  Wend.  (N.  Y.)  340;  Justice  v.  Terry,  52  N.  Y. 
323;  Mason  v.  Dicker,  72  N.  Y.  595;  Higdon  v.  Thomas,  1  H.  &  G. 
(Md.)  139;  McFarson's  Appeal,  11  Penn.  St.  503;  Young  v.  Paul,  10  N. 
J.  Eq.  402;  Douglass  v.  Spears,  2  N.  &  McC.  (S.  C.)  207;  Cook  d.  Ander- 
son, 20  Ind.  15;  Ivory  v.  Murphy,  36  Mo.  534;  De  Cordova  v.  Smith,  9 
Tex.  129;  Thayer  v.  Luce,  22  Ohio  St.  62. 

(2)  Worrall  v.  Munn,  5  N.  Y.  229;  Farris  v.  Martin,  '0~  Humph. 
(Tenn.)  495. 

(3)  2  Kent,  511;  Bickley  u.  Runan,  60  Ala.  293. 

(4)  Palmer  v.  Stevens,  1  Denio  (N.  Y.),  478;  Sanborn  v.  Folger,  9  Al- 
len (Mass.),  474;  Barry  v.  Coombe,  1  Pet.  (U.  S.)  640. 

(5)  Saunderson  v.  Jackson,  3  Esp.  180;  Schneider  v.  Norris,  2  Maule 
&  S.  286;  Commonwealth  v.  Ray,  3  Gray  (Mass.),  447;  Lerned  v.  Wanne- 
macher,  9  Allen  (Mass.),  417;  Boardman  v.  Spooner,  13  Allen  (Mass.), 
353;  Braley  v.  Kelly,  25  Minn.  160 

(6)  Benjamin  on  Sales,  §  259. 

(7)  Coddington  v.  Goddard,  16  Gray  (Mass.),  444;  McComb  v. 
Wright,  4  Johns.  Ch.  (N.  Y.)  663;  Anderson  v.  Harold,  10  Ohio,  400. 

(8)  Kawkins  v.  Chance,  19  Pick.  (Mass.)  502. 

(9)  Newton  v.  Bronson,  13  N.  Y.  587;  Snyder  v.  Neefus,  53  Barb.  63. 

(10)  Benjamin  on  Sales,  §  268;  Coddington  v.  Goddard,  16  Gray 
(Mass.),  442;  Remick  v.  Sandford,  118  Mass.  106. 


PART    II. 

GENERAL  PRINCIPLES   OF  CONDITIONAL  SALES. 


CHAPTER   IIL 

CONDITIONS  PRECEDENT  TO   BE   PKI^FORMED  BY  VENDOR. 

Article  3. — Conditions  Precedent,  §§  17,  18. 

Article  4. — Conditions  to  be  Performed  by  the  Yen- 
dor — Generally,  §§  19,  20. 

Article  5. — Conditions  Necessary  to  put  in  a  De- 
liverable State,  §§  21,  22. 

Article  6.— Delivery,  §§  23-29. 

Article  7. — Sale  by  Description,  §  30. 

CHAPTER   IV. 

CONDITIONS  PRECEDENT  TO  BE  PERFORMED  BY  VENDEE. 

Article  8. — Implied  Conditions,  §§  31-37. 
Article  9. — Express  Conditions,  §§  38-43. 

CHAPTER  V. 
CONDITIONS  SUBSEQUENT. 

Article  10. — Express  Conditions,  §§  44,  45. 
Article  1L — Implied  Conditions,  §  46. 

CHAPTER  VI. 

INCIDENTS— WARRANTIES. 

Article  12. — Implied  Warranties,  §§  47-54. 
Article  13. — Express  Warranties,  §§  55-61. 
Article  14. — Special  Cases,  §  62. 

(25) 


Condiliuits  I'recedenl  to  be  I'erjvrmea  by  [  etutor.  27 


CHAPTER    III. 

CONDITIONS  PRECEDENT  TO  BE   PERFORMED  BY  VENDOR. 

Article  3. — Conditions  Precedent 

§  17.  Intent  Governs. 

§  18.  Conditions  must  be  Performed. 

§  17.  Intent  Governs.  That  there  may  be  some 
condition  to  be  performed  before  the  actual  transfer 
of  title,  and  that  the  condition  must  be  complied  with 
or  waived,  before  title  passes,  is  well-established  law.^ 
And  the  condition  may  be  one  to  be  performed  either 
precedent  or  subsequent  to  deliv^ery.  Whether  a  de- 
livery under  an  agreement  for  the  sale  of  chattels  is 
absolute  or  conditional  depends  on  the  intent  of  the 
parties ;  and,  to  establish  that  the  delivery  was  con- 
ditional, it  is  not  necessary  that  the  vendor  should 
declare  the  conditions  in  express  terms  at  the  deliv- 
ery.^ It  is  su-fficient  if  the  intent  of  the  parties  can 
be  inferred  from  their  acts  or  the  circumstances  of 
the  sale.^  The  condition  may  be  expressed  or  im- 
plied.^ 

(1)  Benjamin  on  Salps,  §  320. 

(2)  Smith  V.  Tilton,  10  Me.  (I  Fairf.)  350. 

(3)  Hainmett  v.  Lineman,  48  N.  Y.  399;  Day  v.  Bassett,  102  Mass. 
445;    Huiihes  v.  SheafF,  19  Iowa,  335. 

(4)  Callaghan  v.  Myers,  89  111.  566. 

§  18.  Conditions  must  be  Performed.  Conditions 
precedent  must  be  fully  and  strictly  performed  before 
the  party  on  whom  their  fulfillment  is  incumbent  can 
call  on  the  other  to  comply  with  his  promise.'  Con- 
ditions precedent  may  be  dependent  for  fulfillment 
either  on  the  vendor  or  vendee,  and  may  refer  to  the 


28  Conditional  Sales. 

articles  which  are  the  subject  of  contract  or  the  con- 
sideration to  be  paid  therefor. 

(1)  Hunt  V.  Livermore,  5  Pick.  395;  Dana  v.  King,  2  Pick.  155;  Sey- 
mour V.  Bennett,  14  Mass.  266;  Brown  v.  Foster,  113  Mass.  136;  Mazone 
V.  Caze,  18  La.  Ann.  13;  Shaw  v.  Turnpike  Co.,  2  Penn.  454;  Albany 
Dutch  Church  v.  Bradford,  8  Cowen,  457  ;  Southerland  v.  Gilmour,  2  Al- 
len (N.  B.),  481  ;  Farmer  v.  D'Everado,  3  U.  C.  Q.  B.  154;  Levy  v.  Bur- 
gess, 64  N.  Y.  390;  Downey  v.  O'Donnell,  86  111.  49;  Murray  v.  Baker,  6 
Hun,  264;  Schenke  v.  Rowell  7  Daly,  286;  Jones  v.  United  States,  96 
U.  S.  122;  White  v.  Day,  56  Iowa,  248;  Sullivan  v.  Byrne,  10  S.  C.  122; 
Zaleski  v.  Clark,  44  Conn.  218;  Gibson  v.  Cranage,  39  Mich.  49;  Clark 
V.  Rice,  46  Mich.  308;  Robinson  v.  Ins.  Co.,  31  U.  C.  C.  P.  562. 

Article  4. — Conditions  to  be  Performed  by  Vendor. 

§  19.  Rules  Governing. 

§  20.  Avoidance  of  Conditions. 

5  19.  Rules  Governing  Conditions  to  be  Performed 
by  Vendor.  The  rule  formulated  by  Lord  Blackburn 
is,  that  where  by  the  agreement  the  vendor  is  to  do 
any  thing  to  the  goods  for  the  purpose  of  putting 
them  into  that  state  in  which  the  purchaser  is  bound 
to  accept  them — or,  as  it  is  sometimes  worded,  into  a 
deliverable  state — the  performance  of  these  things 
shall,  in  the  absence  of  circumstances  indicating  a 
contrary  intention,  be  taken  to  be  a  condition  precedent 
to  the  vesting  of  title.^  The  vendee  may,  however, 
waive  the  condition ;  and  if  he  refuse  to  accept  the 
performance,  or  hinder,  or  prevent  it,  he  will  have 
waived  performance,  and  his  liability  becomes  fixed 
and  absolute.^ 

(1)  Blackburn  on  Sales,  151,  152;  Bailey  v.  Smith,  43  N.  H.  141; 
Stroussv.  Ross,  25  Ind.  300;  McClung  w.  Kelley,  21  Iowa,  508;  Foster 
V.  Ropes,  111  Mass.  10;  Paton  v.  Currie,  19  U.  C.  Q.  B.  288;  Gilbert  w. 
N.  Y.  C.  R.  R.  Co.,  4  Hun,  378. 

(2)  Pontifer  v.  Wilkinson,  1  C.  B.  75;  Holme  v.  Guppy,  3  M.  &  W. 
387;  Arraitage  v.  ln.sole,  14  Q.  B.  728;  Cort  v.  Railroad  Co.,  17  Q.  R.  127; 
Aitcbeson  v.  Cook,  U.  C.  Q.  B.  490;  Smith  v.  Lewis,  26  Conn.  110;  Mill 
Dam  Foundry  v.  Hovey,  21    Pick.  437;   Borden  v.  Borden,  5  Mass.  67? 


Conditions  Precedent  to  be  Performed  by  Vendor.         29 

Shaw  V.  Hurd,  3  Bibb,  372;  Grave  v.  Donaldson,  1.0  Penn.  St.  12S;  Kug- 
ler  V.  Wiseman,  20  Ohio,  361;  Falansbee  v.  Adams,  86  111.  I.'.;  Hayden 
V.  Reynolds,  54  Iowa,  157;  Steamship  Co.  v.  United  States,  13  Ct.  CI. 
(U.  S.)  209;  Peck  v.  United  State.s,  14  Ct.  CI.  (U.  S.)  84;  Taylor  v. 
United  States,  14  Ct.  CI.  (U.  S.)  453;  Wolf  v.  Marsh,  54  Cal.  228  J  Law- 
rence V.  Miller,  86  N.  Y.  131;  Haden  v.  Coleman,  7;i  X.  Y.  567;  Taylor 
V.  Kisley,  28  Bun,  141 ;  Summer  v.  Adams,  36  N.  U.  449. 

^  20.  Avoidance  of  Conditions.  If  the  conduct  of 
either  party  should  render  him  incapable  of  carrying 
out  the  contract,  it  would  be  a  complete  breach  of 
contract  on  his  part,  and  the  other  party  need  not 
tender  performance  of  the  condition  precedent.  Acts 
of  God  preventing  performance  have  been  held  to  re- 
lieve the  vendor.^  But  it  has  also  been  held,  tliat 
where  a  party  engages  unconditionally,  by  express 
contract,  to  do  an  act,  performance  is  not  excused  bv 
an  inevitable  accident,  or  by  an  unforseen  contingency 
not  within  his  contract.-  A  contract  to  sell  and  de- 
liver an  animate  thing  at  a  certain  day  will  be  at  an 
end  if  the  subject  of  contract  die  in  the  interval.  But 
where  it  is  within  the  power  of  the  vendor  to  perform 
the  essential  elements  of  a  contract,  nothing  can  re- 
lieve him  of  his  obligation,  excepting  acts  of  the  ven- 
dee.^ If,  however,  the  goods  perish  without  his  fault, 
he  is  excused  from  delivery  on  the  day  named.^ 

(1)  Knight  V.  Bean,  22  Me.  531;  Dickey  v.  Linscott,  20  Me.  453. 
Contra,  see  School  District  v.  Dauchy,  25  Conn.  530. 

(2)  Harmony  v.  Bingham,  11  N.  Y.  106;  Railroad  Co.  v.  Bowns,  58  N. 
Y.  573;  Kemp  v.  Ice  Co.,  69  N.  Y.  45;  Hay  v.  Holt,  91  Penn.  St.  88; 
School  District  v.  Dauchy,  25  Conn.  530. 

(3)  White  V.  Mann,  26  Me.  361-368;  Mill  Dam  Foundry  v.  Hovey,  21 
Pick.  441.  (See  per.)  Ryan  v.  Dayton,  25  Conn.  194;  Adams  v.  Nichols, 
19  Pick.  275;  Boyle  v.  Agawam  Canal  Co.,  22  Pick.  381;  Lord  v. 
Wheeler,  1  Gray,  282;  Phillips  v.  Stevens,  16  Mass.  2.>8;  Beebe  t;.  .John- 
son, 19  Wend.  500;  Kribs  v.  Jones,  44  Md.  396;  Delaware  R.  R.  Co.  v. 
Bowns,  58  N.  Y.  573;  Kemp  v.  Ice  Co.,  69  X.  Y.  45;  Booth  v.  Rolling 
Mill  Co.,  60  X.  Y.  487;  Harmony  v.  Bingham,  2  Kernan,  106;  Hay  u. 
Holt,  91  Penn.  St.  88. 

(4)  Dexter  v.  Norton,  47  N.  Y.  62. 


30  Conditional  Sales. 


Article  5. — Conditions   Necessary  to  put  in  a  De- 
liverable State. 

§  21.  Separation. 
§  22.  Measurement. 

§  21,  Separation.  If  the  goods  are  sold  by  num- 
ber, weight,  or  measure,  the  sale  is  prima  facie  not 
complete  till  their  quantity  is  ascertained;  and,  if 
they  are  mixed  with  others,  not  until  they  are  separ- 
ated and  designated.^  Where  a  separation  has  been 
made  by  the  vendor  of  a  portion  of  the  personal 
property  sold,  but  something  still  remains  to  be 
done  to  the  rest,  the  portion  separated  becomes 
the  property  of  the  vendee.-  And  it  makes  no  differ- 
ence in  the  operation  of  this  rule  as  to  whether  the 
contract  is  an  entirety  or  not. 

If  in  the  course  of  separation  the  property  deterior- 
ates through  the  fault  of  the  vendor,  the  vendee  is 
not  bound  to  receive  it.^ 

In  case  of  a  contract  to  manufacture  goods  and  sell 
them  to  another,  no  property  in  the  material  passes 
to  the  vendee  until  the  article  has  been  finished  and 
set  apart  for  the  vendee,  with  his  assent  and  ac- 
cepted by  him,  although  a  portion  of  the  price  agreed 
upon  may  have  been  paid  in  the  meantime.*  Where 
property  has  been  separated,  title  will  pass  (if  that 
was  the  intention  of  the  parties  in  making  the  con- 
tract), even  though  the  vendor  is  required  to  do 
something  in  addition  thereto.^ 

(1)  Fuller  V.  Bean,  34  N.  II.  290,  300.  301;  Hutchinson  v.  Grand 
Trunk  Ry.  Co.,  59  N.  H.  487;  Cook  v.  Logan,  7  Iowa,  142;  Browning  v. 
Hamilton,  42  Ala.  484;  Randolph  &  Co.  v.  Elliott,  34  N.  J.  L.  184;  Com 
mercial  Bank  v.  Gillette,  90  Ind.  268. 

(2)  Thompson  v.  Conover,  32  N.  J.  L.  466. 

(3)  Keeler  v.  Vandervere,  5  Lans.  (N.  Y.)  313. 


Conditions  Precedent  to  be  Performed  by  Vendor.         31 

(4)  Matterline  v.  Rico,  02  Barb.  (N.  Y.)  593.    Contra,  Goddard  v.  Bin- 
ney,  115  Mass.  45U;  Shaw  v.  Smith,  48  Conn.  306. 

(5)  Morrow  v.  Reed,  30  Wis.  81;  Morrow  v.  Carai.b.'ll,  30  Wis.  90. 

§  22.  Measurement.  The  authorities  are  both  nu- 
merous and  uuitbrni,  which  hold  that  where  any 
thing  is  to  be  done  by  the  vendor,  or  by  the  mutual 
concurrence  of  both  parties,  for  the  purpose  of  ascer- 
taining the  price  of  the  goods,  as  by  weighing,  test- 
ing, or  measuring  them,  where  the  price  is  to  depend 
upon  the  quantity  or  quality  of  the  goods,  the  per- 
formance of  those  things  is  to  be  deemed  presump- 
tively a  condition  precedent  to  the  transfer  of  the 
property,  although  the  individual  goods  be  ascer- 
tained, and  they  are  in  a  state  in  which  they  may 
and  ought  to  be  accepted.^  The  employment  of  a 
person  to  do  the  measuring  is  not  sufficient;  there 
must  be  an  actual  measurement.'^  But  in  the  port 
of  New  York,  where  it  is  the  custom,  upon  a  purchase 
of  grain  in  store,  for  the  purchaser  to  select  a  meas- 
urer, who  is  thereupon  employed  by  the  board  of 
measurers  to  measure  the  grain,  and  the  measure- 
ment and  leaving  the  grain  in  the  store-house  is  by 
the  custom  a  delivery  to  the  purchaser,  it  has  been 
held  that,  where  the  measurer  was  so  employed,  it 
was  a  substantial  compliance  with  the  custom,  and  a 
a  valid  delivery  of  the  grain.^ 

A  contract  to  sell  and  deliver  cotton  is  not  per- 
formed where  the  weight  and  value  have  not  been 
ascertained,  and  in  such  sales  it  has  been  held 
that  the  cotton  must  be  weighed  with  the  concur- 
rence or  acquiescence  of  the  vendee.^  But  where,  on 
a  sale  of  cotton,  there  is  no  agreement  that  it  shall 
be  weighed,  weighing  is  not  necessary  to  constitute  a 
good  delivery.^ 

A  sa1(^  of  honher  to  he  taken  and  measured  from  a 


32  Conditional  Sales. 

large  bulk,  and  to  be  an  average  lot  as  to  thickness 
and  quality,  is  not  complete,  even  between  the  par- 
ties, until  selected  and  measured.'^  Where  the  lum- 
ber sold  has  been  piled  by  itself,  preparatory  to 
shipping,  and  the  possession  of  the  whole  delivered, 
title  passes  without  any  subsequent  measurement.'^ 
When  sold  subject  to  measurement  by  an  inspector, 
the  vendee  may  insist  on  having  it  actually  inspected 
and  measured,  or  something  equivalent.  A  mere  es- 
timate is  not  sufficient.^  Where,  by  agreement,  the 
parties  are  to  do  the  measuring,  but  meet  and  dis- 
agree, the  title  does  not  pass,  even  though  the  sale 
be  of  an  entire  lot  of  lumber.^  On  the  other  hand,  it 
has  been  held,  that  the  whole  quantity  being  identi- 
fied and  sold,  at  a  fixed  price  per  foot,  the  process  of 
ascertaining  the  amount  was  not  necessary  to  pass 
title,  as  it  might  have  been  if  less  than  the  whole 
amount  delivered  was  to  be  sold  and  delivered  by 
measurement.  In  that  case  the  measurement  might 
be  necessary  to  fix  the  identity  of  the  property  sold. 
But  when  all  is  sold,  no  such  process  is  needed  to 
pass  title — the  ascertaining  of  the  price  being  a 
mere  mathematical  computation,  involving  no  further 
action  to  bring  the  minds  together, ^"^ 

Again,  under  a  contract  for  the  sale  of  thirty 
thousand  barrel  staves,  at  a  specified  rate  per  thou- 
sand, to  be  delivered  at  a  specified  depot,  the  deliv- 
ery of  seven  thousand  at  the  depot  was  sufficient  to 
pass  title  to  the  vendee  in  the  staves  so  delivered,  al- 
though he  had  not  seen  them,  and  no  count  had  been 
made  to  ascertain  the  amount  to  be  paid.^^ 

(1)  Lingham  v.  Eggleston,  27  Mich.  324;  I>owry  v.  Barelli,  21  Ohio  St. 
324;  Ortman  v.  Green,  2G  Mich.  209;  First  Nat.  Bank  of  Marquette  v. 
Crowley,  24  Mich.  492;  Hahn  v.  Fredericks,  30  Mich.  223;  Wilkinson 
V.  Holiday,  33  Mich.  386;   Courtright  v.  Leonard,  11  Iowa,  32;   Seris  v. 


Conditions  Precedent  to  he  Performed  by  Vendor.         33 

Beliocg,  17  La.  Ann.  14G;  Rhea  v.  Otto,  19  La.  Ann.  12.3;  Ockington  v. 
Kichoy,  41  N.  11.  275;  Abat  v.  Atkinson,  21  La.  Ann.  414;  Frost  r. 
Woodruff,  54  111.  155. 

(2)  Everett  v.  Clements,  9  Ark.  478. 

(3)  McCready  v.  Wright,  5  Duer  (N.  Y.),  571. 

(4)  Jones  v.  Pearce,  25  Ark.  545. 

(5)  Kautfman  v.  Stone,  25  Ark.  336. 

(6)  Ockington  v.  Richey,  41  N.  H.  275. 

(7)  Tyler  v.  Strang,  21  Barb.  (N.  Y.)  198;  Dexter  v.  Bevins,  42  Barb. 
(N.  Y.)  573;  Riddle  v.  Varnum,  20  Pick.  280. 

(8)  McAndrews  v.  Santee,  57  Barb.  (N.  Y.)  193. 

(9)  Gibbs  V.  Benjamin,  45  Vt.  124;  Ilutchins  v.  Gilchrist,  23  Vt.  88; 
Halev.  Huntley,  21  Vt.  147. 

(10)  Adams  Mining  Co.  v.  Senter,  26  Mich.  80;  Bigole  v.  McKenzie, 
26  Mich.  470;  Whitcomb  v.  Whitney,  24  Mich.  486;  Wilkinson  v.  Holli- 
day,  33  Mich.  386;  Bremer  v.  Mich.  Salt  Ass.,  47  Mich.  526;  South- 
western Freight  Co.  v.  Standard,  44  Mo.  71. 

(11)  Hyde  v.  Lathrop,  2  Abb.  (N.  Y.)  App.  Decis.  436;  Crofoot  v.  Ben- 
nett, 2  Comst.  258;  Tyler  v.  Strang,  21  Barb.  198;  Dexter  v.  Norton,  55 
Barb.  272 ;  Bradley  v.  Wheeler,  44  N.  Y.  495 ;  Comfort  v.  Kiersted,  26 
Barb.  472. 

Article  6. — Delivery. 

§  23.  Delivery — Question  of  Intent. 

§  24.  Symbolical,  or  Constructive  Delivery. 

§  25.  Delivery  to  Carrier. 

§  26.  Delivery  of  More  or  Less  than  Contracted  for. 

§  27.  Time  of  Delivery. 

§  28.  Place  of  Delivery. 

§  29.  Estoppel — Delivery  by. 

§  23.  Delivery — Question  of  Intent.  Whether  de- 
livery be  absolute  or  conditional,  is  a  question  of  in- 
tent to  be  ascertained  from  the  conduct  of  the 
parties.^  The  intent  is  usually  one  for  the  jury  to 
determine.'^  But  the  evidence  may  justify  a  deter- 
mination of  the  question  by  the  court,  as  one  of  law.^ 
In  the  absence  of  stipulations  to  the  contrary,  the  law 
implies  that  the  place  of  delivery  is  at  the  place 
where  the  property  is,  at  the  time  of  sale,  and  that  it 
is  at  the  vendee's  disposal  at  that  place.^  A  different 
3 


34  Conditional  Sales. 

rule,  however,  prevails  where  the  time  and  place  of 
delivery  is  provided  by  the  terms  of  delivery,  and 
the  sale  would  not  be  complete  until  the  property  is 
delivered  according  to  contract.  The  law  can  not 
make  a  new  contract  for  the  vendor  and  vendee  ;  but, 
if  the  time  of  delivery  be  not  fixed  by  contract,  de- 
livery must  be  made  within  a  reasonable  time,  de- 
pendent upon  the  facts  and  circumstances  of  each 
case.^ 

(1)  McComber  v.  Parker,  13  Pick.  182;  Riddle  v.  Varnum,  20  Pick. 
283;  Bethel  Steam  Mill  Co.  v.  Brown,  57  Me.  18;  Fuller  v.  Bean,  34  N. 
H.  290;  Prescott  v.  Locke,  51  N.  H.  101;  Russell  v.  Carrington,  42  N. 
Y.  118;  Hammett  v.  Linneman,48  N.  Y.  399;  Fitch  v.  Burk,  38  Vt.  689; 
Morse  v.  Sherman,  106  Mass.  433;  Dugan  v.  Nichols,  125  Mass.  43;  Cun- 
ningham V.  Ashbrook,  20  Mo.  553;  Wilkinson  v.  Holliday,  33  Mich. 
386. 

(2)  George  v.  Stubb,  26  Me.  250;  Kalsea  v.  Haines,  41  N.  H.  253; 
Marble  v.  Moore,  102  Mass.  443;  Dyer  v.  Libby,  61  Mo.  45;  De  Kidder 
V.  McNight,  13  Johns.  294;  Clung  v.  Kelly,  21  Iowa,  508;  Byer  v.  El- 
nyer,  2  Gill  (Md.),  150. 

(3)  Chapman  v.  Shepard,  39  Conn.  413;  Merchants'  Nat.  Bank  v. 
Bangs,  102  Mass.  291;   Wighton  v.  Bowley,  130  Mass.  254. 

(4)  Benjamin  on  Sales,  §  682;  Miles  u.  Roberts,  34  N.  H.  254;  Mid- 
dlesex Co.  V.  Osgood,  4  Gray,  447;  Goodwin  v.  Holbrook,  4  Wend.  380; 
Rice  V.  Churchill,  2  Denio  (N.  Y.),  146;  Kraft  v.  Hurtz,  11  Mo.  109;  At- 
wood  V.  Cobb,  15  Pick.  227. 

(5)  Cocker  v.  Franklin  Hemp  Mfg.  Co.,  3  Sum.  (IT.  S.  C.  C.)  530; 
Rankin  v.  Goddard,  4  Allen  (N.  B.),  155;  Bvunskill  v.  Mair,  15  U.  C.  Q. 
B.  213;  Cox  v.  Jones,  24  U.  C.  Q.  B.  81 ;  Steel  Works  v.  Dewey,  37  Ohio 
St.  242;  Bolton  v.  Riddle,  35  Mich.  13;  Coon  ?;.  Spaulding,  47  Mich. 
162;  Coates  v.  Sangston,  5  Md.  121;  Randall  v.  Johnson,  59  Miss.  317, 

§  24.  Symbolical,  or  Constructive  Delivery.     In  the 

case  of  Chaplin  v.  Rogers,^  Lord  Ellenborough  said: 
"  Where  goods  are  ponderous,  and  incapable  of  being 
handed  over  from  one  to  another,  there  need  not  be 
an  actual  delivery,  but  it  may  be  done  by  that  which 
is  tantamount— such  as  the  delivery  of  the  key  of  a 
warehouse  in  which  the  goods  are  lodged,  or  by  the 
delivery  of  other  indicia  of  property."    Our  own  courts 


Conditions  J-'recedenl  to  be  Performed  by  Vendor.         35 

have  held  that  the  delivery  required  in  each  particu- 
lar case  depends  upun  the  nature  of  the  property  and 
its  situation ;  but  if  it  be  ponderous,  a  constructive 
delivery  will  be  sufficient.' 

80  the  delivery  of  a  deed  of  transfer  of  a  ship  at 
sea,  passes  the  title  to  her  purchaser  f  and  her  cargo 
may  also  be  transferred  by  the  delivery  of  a  bill  of 
ladins:,^  or  invoice/'  The  same  is  true  of  other  like 
instruments  which  represent  goods  among  merchants, 
as  bills  of  lading  or  railroad  receipts.*^ 

But  in  every  case  the  symbol  employed  must  have 
been  delivered  with  the  intention  of  transferring  the 
title  to  the  property  sold.' 

(1)  Chapin  v.  Rogers,  1  East,  192.  See  also,  Elllis  v.  Hunt,  3  T.  R. 
(Eng.)  464. 

(2)  Boynton  v.  Veazie,  L!4  Me.  286;  Leisherness  v.  Berry,  38  Me.  83; 
Bethel  Steam  Mill  Co.  v.  Brown,  57  Me.  9;  ShurtleflF  v.  Willard,  19  Pick. 
210;  Jewettf.  Warren,  12  Mass.  300;  Terry  v.  Wheeler,  25  N.  Y.  520; 
Hayden  v.  Demets,  53  N.  Y.  426;  Taylor  v.  Richardson,  4  Houston 
(Del.)  300;  People's  Bank  v.  Gridley,  91  111.  457;  Andenried  v.?Randall, 
3  Cliff.  99;  Newcomb  v.  Cabell,  10  Bush,  460;  Adams  v.  Foley,  4  Chirke 
(Iowa),  52;   Puckett  v.  Reed,  31  Ark.  131. 

(3)  U.  S.  Rev.  Stats.,  §  4192;  Atkinson  v.  Mailing,  2  T.  R.  (Eng.)  462; 
Brinly  v.  Spring,  7  Me.  241;  Baldwin  v.  Tucker,  1  Pick.  389;  Gardner 
V.  Howland,  2  Pick.  602;  Joy  v.  Sears,  9  Pick.  4;  Tucker  v.  Buffington, 
15  Mass.  477;  Turner  v.  Coolidge,  2  Me.  350. 

(4)  Peters  v.  Ballister,  3  Pick.  495  ;  Pratt  v.  Parkman,  24  Pick.  42, 
47;  McKee  v.  Garcelon,  60  Me.  167  ;  Gibson  v.  Stevens,  8  How.  (U.  S.) 
399;  Patrick  v.  Meserne,  18  N.  H.  300;  Bank  of  Peoria  v.  Railroad,  58 
N.  H.  203;   Dixon  v.  Buck,  42  Barb.  70. 

(5)  Gardner  v.  Howland,  2  Pick.  (2d  ed.)  509. 

(6)  Salter  v.  Woollams,  2  M.  &  G.  (Eng.)  650;  Wood  v.  Manley,  11 
Add.  &,  E.  34;  Warren  v.  Milliken,  57  Me.  97;  Tuxworth  v.  Moore,  9 
Pick.  347;  Bank  v.  Crocker,  111  Mass.  163;  Bank  v.  Dearborn,  115 
Mass.  219;  Newcomb  v.  Railroad,  115  Mass.  230;  Trieber  v.  Andrews,  31 
Ark.  163;  Davis  v.  Russell,  58  Cal.  611;  Newhall  v.  Langdon,  39  Ohio 
St.  87. 

(7)  Calcutt  V.  Ruttan,  13  U.  C.  Q.  B.  146;  Richardson  v.  Gray,  29  U. 
C.  Q.  B.  360;  Puckett  v.  Reed,  31  Ark.  131  ;  Adams  v.  Foley,  4  Iowa,  52; 
Bank  v.  Gridley,  91  111.  457;  Terry  v.  Wheeler,  25  N.  Y.  520;  Hayden  v. 
Dements,  53  N.  Y.  426;  Leisherness  v.  Berry,  38  Me.  83;  Bethel  Steam 


36  Conditional  Sales. 

Mill  Co.  V.  Brown,  57  Me.  9;  Cartwright  v.  Phoenix,  7  Cal.  281;  Clark 
V.  Draper,  19  N.  H.  419. 

§  25.  Delivery  to  Carrier.  Where  goods  ordered 
and  contracted  for  are  not  delivered  directly  to  the 
vendee,  but  were  to  be  sent  to  him  by  the  vendor, 
and  he  deliver  them  to  a  carrier,  properly  consigned, 
and  notify  the  vendee  of  that  fact,  the  vendor  has 
fulfilled  his  duty — the  carrier  so  employed  being  re- 
garded as  the  agent  of  the  vendee.^  The  goods  so 
delivered  must  be  in  a  proper  condition  when  de- 
livered to  the  carrier,  so  that  in  case  of  damage,  in 
transportation,  an  action  may  be  maintained  by  the 
consignee  against  the  carrier.^  If  it  has  been  the 
usage  between  the  parties,  in  former  dealings,  for 
the  vendor  to  insure  the  goods  before  shipment,  or 
consignment,  or  if  he  receive  specific  instructions  to 
insure  in  any  particular  case,  he  is  bound  to  insure.^ 

Delivery  of  the  goods  by  the  vendor  to  a  desig- 
nated carrier,  in  accordance  with  the  specific  request 
of  the  vendee,  is  a  delivery  to  the  vendee,"^  and  any 
loss  or  damage  in  transportation  must  be  borne  by  the 
vendee.^  But  if  the  vendee  order  goods  delivered  to 
a  designated  carrier,  and  the  vendor  ships  by  another 
route,  the  goods  being  lost,  the  loss  must  be  borne 
by  the  vendor,  not  by  the  vendee.'^  For,  by  the  act 
of  shipment  by  another  route  than  the  one  indicated 
by  the  vendee,  the  vendor  continues  to  exercise  do- 
minion over  the  goods,  and  the  delivery  is  therefore 
not  complete. 

(1)  Magruder  v.  Gage,  3.3  Md.  344;  Hall  v.  Gaylor,  37  Conn.  550; 
Merchants  v.  Chapman,  4  Allen,  362;  Hunter  v.  Wright,  12  Allen,  548  ; 
Putnam  v.  Tillotson,  13  Mete.  517;  Orcutt  v.  Nelson,  1  Gray,  536  ,  Pacific 
Iron  Works  v.  Long  Island  R.  Co.,  62  N.  Y.  272;  Wilcox  Silver  Plate 
Co.  V.  Green,  72  N.  Y.  17;  Higgins  v.  Murray,  73  N.  Y.  252;  Morey  v. 
Medbury,  10  Hun,  540;  Sohn  v.  Jervis,  1  North  Eastern  Rep.  7:i;  Wat- 
kins  V.  Paine,  57  Ga.  50. 


ConditionH  Precedent  to  he  Perfonaed  by  Vendor.         37 

(2)  Buckman  v.  Levi,  3  Camp.  414;  Clarke  v.  Ilutchins,  14  East.  475 
Alexander  v.  Gardner,  1  Bing.  (X.  C.)  G71  ;  Dawes  v.  Peck,  8  T.  R.  330 

(3)  London  Law  Mag.,  Vol.  4,  p.  359;  Smith  v.  Lacelles,  2  T.  R.  189 

(4)  Glen  V.  Whitaker,  51  Barb.  451;  Bradley  u.  Wheeler,  4  Rob.  18 
Hills  u.  Lj'nch,  3  Rob.  42;  Whiting  v.  Farrand,  1  Conn.  60;  Quimby  v 
Carr,  7  Allen,  417;  Finn  v.  Clark,  10  Allen,  484;  Finn  v.  Clark,  12  Al 
len,  522;  Downer  v.  Thompson,  2  Hill,  137;  Foster  v.  Rockwell,  104 
Mass.  170;  Udell  t/.  Boston  &  M.  R.  R.,  109  Mass.  50;  Wigton  v.  Bow- 
ley,  130  Mass.  252;  Ober  v.  Smith,  78  N.  C.  313;  Burton  v.  Bajrd,  44 
Ark.  556. 

(5)  Magruder  v.  Gage,  33  Md.  344. 

(6)  Wheelhouse  v.  Parr,  (Mass.)  G  North-eastern  Rep.  787. 

§  26.  Delivery  of  More  or  Less  than  Contracted  for. 

The  vendor  does  not  comply  with  his  contract  by  the 
tender  or  delivery  of  either  more  or  less  than  the 
exact  quantity  contracted  for/  or  by  sending  goods 
sold  mixed  with  other  goods.-  And  where  a  pur- 
chaser received  goods  in  excess  of  those  ordered,  and, 
on  remitting  the  price  of  those  ordered,  wrote :  "  Bal- 
ance of  goods  shipped  me  were  not  ordered.  You 
will  please  have  patience  until  they  are  sold,  or  they 
are  subject  to  your  order,  if  you  prefer  it  " — it 'was 
decided  that  neither  this  communication  nor  the  re- 
tention of  the  balance  of  the  goods,  for  several  years, 
without  proof  of  sale,  constituted  in  law  any  promise 
to  pay  for  them.^ 

If  the  goods  are  delivered  in  an  essentially  altered 
condition,'^  the  contract  will,  therefore,  not  have  been 
complied  with ;  but  where  the  goods  are  ordered 
from  a  correspondent  who  is  purchasing  agent,  the 
rule  is  less  rigid  f  for  the  law  of  principal  and  agent 
governs,  and  not  that  of  vendor  and  vendee.*' 

As  a  general  rule,  it  may  be  stated  that  the  vendee 
may  refuse  to  receive  the  goods  tendered,  if  they 
either  exceed  the  quantity  agreed  upon,  or  if  they  are 
of  a  less  quantity."  But  the  vendee  is  bound  to  pay 
for  any  part  that  he  accepts ;  and,  after  the  time  for 


38  Conditional  Sales. 

delivery  has  elapsed,  he  must  either  return  or  pay 
for  the  goods  received,  and  can  not  insist  on  retain- 
ing them  without  payment  until  the  vendor  makes 
deUvery  of  the  rest.^  This  doctrine,  however,  has 
been  expressly  repudiated  in  New  York/-^ 

Words  of  qualification— such  as  "  about,"  or  "  more 
or  less  " — show  that  the  quantity  is  not  restricted  to 
the  exact  number  or  amount  specified ;  and,  in  such 
cases,  the  vendor  is  to  be  allowed  a  certain  moderate 
and  reasonable  latitude  in  the  perform ance.^'^ 

(1)  Benjamin  on  Sales,  §  689;  Croninger  v.  Crocker,  62  N.  Y.  151; 
Highland  Chemical  and  Mining  Co.  v.  Mathews,  76  N.  Y.  145;  Hill  v. 
Heller,  27  Hun  (N,  Y.),  416. 

(2)  Croninger  v.  Cracker,  62  N.  Y.  151.  See  also,  Southwell  v.  Breez- 
ley,  5  Oregon,  143. 

(3)  Goodwin  v.  Wells,  49  Ala.  309. 

(4)  Reynolds  v.  Shuter,  3  U.  C.  Q.  B.  377. 

(5)  Ireland  v.  Livingston,  L.  R.  2  Q.  B.  50. 

(6)  Cassaboglou  v.  Gibbs,  9  Q.  B.  D.  220. 

(7)  Dixon  V.  Fletcher,  3  M.  &  W.  (Eng.)  146;  Hart  v.  Mills,  15  M.  & 
W.  85;  Levy  v.  Green,  8  E.  &  B.  (Eng.)  575;  Oxendale  v  Whetherell, 
9  B.  &  C.  386;  Marland  v.  Stanwood,  101  Mass,  470;  Rommel  v  Win- 
gate,  103  Mass.  327;  Croninger  v.  Crocker,  62  N.  Y.  151;  Wright  v.  Barns, 
14  Conn.  518;  Dula  v.  Cowles,  2  Jones  L.  (N.  C.)  454,  Smith  v.  Lewis, 
40  Ind.  98;    Railroad  Co.  v.  Lent,  63  111.  288. 

(8)  Benjamin  on  Sales,  §  600;   Defenbaugh  v.  Weaver,  87  111.  132 

(9)  McMillan  v.  Venderlip,  12  Johns.  167;  Champlin  v.  Rowley,  13 
Wend.  260;  Mead  v.  Digalyer.  16  Wend.  636;  Kein  v.  Tupper,  52  N.  Y. 
555. 

(10)  Creighton  v.  Comstock,  27  Ohio  St.  548,  Brawley  v.  United 
States,  96  U.  S.  168;  Merriam  v.  United  States,  14  Ct.  of  Claims,  289. 

§  27.  Time  of  Delivery.  Where  the  contract  ex- 
presses the  time  of  delivery,  it  has  V)een  held  to 
be  a  question  of  construction  ;  and,  therefore,  one  for 
the  court,  rather  than  the  jury,  to  consider.^  In  con- 
struing mercantile  contracts,  the  word  "  month "  is 
construed  as  a  calendar  month,  unless  the  contrary 
meaning  is  clearly  indicated  by  other  expressions.^ 
If  delivery  is  to  be  made  in  a  certain    number  of 


Conditions  Precedent  to  he  Performed  hy  Vendor.         39 

days,  tlitjy  arc  to  bo  construed  as  ooiisecutive  days, 
Sundays  included  ;  but  the  day  of  making  the  con- 
tract should  be  excluded  in  computing  the  time.^ 
Delivery  "between  "  two  days  includes  the  last  day 
named  or  designated.'  Readiness  on  the  part  of  the 
vendee,  at  the  time  and  place  designated,  has  been 
held  sufficient,  without  actual  delivery.'^ 

In  the  case  of  Startup  v.  MacDonald,^  where  the 
hour,  up  to  which  the  vendor  can  make  a  valid  de- 
livery on  the  last  day  lixed  by  the  contract,  was  under 
consideration,  Parker,  R.,  in  his  judgment,  says: 
"  Wliere  a  thing  is  to  be  done  anijivhere,  a  tender,  a 
convenient  time  before  midnight,  is  sufficient ;  where 
the  thing  is  to  be  done  at  a  particular  place,  and 
where  the  law  implies  a  duty  on  the  party  to  whom 
the  thing  is  to  be  done  to  attend,  that  attendance  is 
to  be  by  daylight  and  a  convenient  time  before  sun- 
set." And  this  may  be  regarded  as  the  established 
rule  in  our  own  courts.'' 

In  a  late  case  of  Stewart  v.  Marnell,^  where  the 
contract  was  to  deliver  ten  car  loads  of  blooms  from 
an  iron  forge,  "  ^5  fast  as  they  mnij  he  produced,^''  and 
the  vendor  had  actually  delivered  all  he  produced, 
the  court  held  that  under  the  contract  the  blooms 
must  be  produced  in  the  ordinary  operations  of 
the  forge,  with  reasonable  diligence,  and  with  reason- 
able and  proper  eiforts,  and  the  vendor  had  no  right 
to  omit  to  produce  them  from  mere  motives  of  econ- 
omy or  convenience.  And  in  the  case  of  Phillips  v. 
Taylor,^  where  the  parties  contracted,  October  29, 
1879,  to  ship  four  hundred  and  fifty  bales  of  rags  from 
Leghorn  to  Xew  York  by  '"prompt  shipment,'''  and  the 
facts  showed  marked  delay  in  delivery,  the  vendee 
refusing  to  accept  delivery  after  March  5,  1880,  it 
was  held  that  the  vendee,  in  an  action  bv  the  vendor 


40  Conditional  Sales. 

for  the  price  of  the  portion  delivered  could  counter- 
claim damages  occasioned  by  such  delay. 

Where  one  sells  goods  to  another,  to  be  shipped 
from  a  foreign  port,  the  shipment  to  be  mnde  within 
certain  specified  months,  and  the  goods  to  be  of  a  cer- 
tain quality,  and  the  name  of  the  vessel  to  be  de- 
clared as  soon  as  it  is  known  to  the  vendor,  the 
stipulations  named  are  conditions  precedent,  to  be 
performed  by  the  vendor  before  he  can  sue  for  a 
breach  of  the  contract;  and  if  he  fails  to  ship  the 
goods  of  the  quality  prescribed  within  the  time  speci- 
fied, or  if  he  does  not  declare  the  name  of  the  ves- 
sel as  soon  as  it  is  known  to  him,  the  failure  of  these 
or  any  one  of  these  conditions  releases  the  vendee 
from  liability.'" 

A  delivery  and  acceptance  after  the  agreed  time 
does  not  itself  enable  the  veijdee  to  set  up  the  non- 
delivery at  the  agreed  time  in  reduction  of  the 
price. ^^  But  if  a  note  is  given  in  consideration  for 
goods  to  be  delivered  at  a  future  date,  a  failure  to 
deliver  at  that  time  will  constitute  a  failure  of  con- 
sideration.'- 

(1)  Plill  V.  Hobart,  16  Me.  164;  Atwood  v.  Clark,  2  Greenl.  249; 
Howe  V.  Huntington,  15  Me.  350;  Kingsley  v.  Wallis,  14  Me.  57;  Mur- 
ray V.  Smith,  1  Hawks,  41 ;  Grune  v.  Dingley,  24  Me.  131  ;  Cameron  v. 
Dingley,  24  Me.  131;  Cameron  v.  Wells,  30  Vt.  633;  Welsh  v.  Gossler, 
89  N.  Y.  540 ;   Atwood  v.  Clark,  2  Me.  249. 

(2)  Reg.  V.  Chawton,  1  Q.  B.  247;  Simpson  v.  Maritson,  11  Q  B.  23; 
Hart  V.  Middleton,  2  C.  &  K.  9;  Webb  v.  Fairmaner,  3  M.  &  W.  473; 
Thomas  v.  Shoemaker,  6  Watts  &  S.  (Penn.)  179;  Barnes  v.  Boomer,  10 
Grant  (Ont.),  532;  Churchill  v.  Merchants'  Bank,  19  Pick.  532,  5.35. 

(3)  Brown  v.  Johnson,  3  M.  &  W.  (Eng.)  331;  Farwell  v.  Rogers,  4 
Cush.  (Mass.)  460;  Butterick  v.  Holden,  8  Cu.sh.  233;  Homes  v.  Smith, 
16  Me.  181 ;  Oatman  v.  Walker,  33  Me.  71 ;  Windsor  v.  China,  4  Greenl. 
298;  Ewing  v.  Bailey,  4  Scam.  420;  Weeks  v.  Hull,  19  Conn.  376; 
Blake  v.  Crowningshield,  9  N.  H.  304;  Cornell  v.  Moulton,  3  Denio  (N. 
y.),  12. 

(4)  Atkins  v.  Boylston  F,  &  M.  Ins.  Co.,  5  Mete.  400;  Richardson  v 
Ford,  14   111.  332;    Cook  v.  Gray,  6   Ind.  335;    Cook   v.  Drais,  2  Cin. 


Conditions  Precedent  to  he  Performed  by  Vendor.         41 

(Ohio)  o4i);   Mowry  v.  Kirk.  10  Ohio  St.  375:   Nixon  v.  Nixon,  21  Ohio 
St.  1 14. 

(.0)  Cook  V.  Drais,  l2  Cin.  (Ohio)  340. 

(6)  Startup  v.  Mac  Donald,  6  M.  k  G.  ">93. 

(7)  Croninger  v.  Trocker,  62  N.  Y.  151 ;  McCarty  v.  Gokay,  31  Iowa, 
505;  Kirkpatrick  V.  Alexander,  60  Ind.  95. 

(8)  Stewart  v.  Marnell,  (N.  Y.)  4  N.  E.  Rep.  743. 

(9)  Phillip.s  V.  Taylor,  (N.  Y.)  4  N.  E.  Rep.  727. 

(10)  Salomon  v.  Boyken,  (Md.)  7  Atlantic  Rep.  701;  Filleyv.  Pope,  6 
Sup.  Ct.  Rep.  20;  Norrington  v.  "Wright,  6  Sup.  Ct.  Rep.  12;  Cunning- 
ham V.  Judson,  (N.  Y.)  2  N.  E.  Rep.  915. 

(11)  Moffatt  V.  Lunt,  2  Pugsley  k  Burbridge  (N.  B.),  673;  Wharton  v. 
Mo.  Car  Foundry  Co.,  1  Mo.  App.  577;  Bock  v.  Healy,  S  Daly  (N.  Y.), 
156. 

(12)  Corwith  v.  Cottef,  82  111.  585. 

§  28.  Place  of  Delivery.  If  the  contract  be  to  de- 
liver the  thing  ordered  at  the  residence  or  place  of 
business  of  the  vendee,  the  vendor  is  liable,  although 
such  delivery  becomes  impossible,  unless  it  becomes 
so  through  the  act  of  the  vendee.^  If  the  vendor  re- 
fuse to  deliver  it  at  a  time  and  place  agreed  on,  and 
it  perish  afterward  without  his  fault,  he  is  liable  for 
it.  But  if  he  be  ready,  and  the  vendee  wrongfully 
refuse  or  neglect  to  receive  it,  the  vendor  is  not 
liable,  unless  the  thing  perishes  through  his  gross 
and  wanton  negligence. 

If,  in  an  action  for  goods  sold  and  delivered, 
the  vendor  proves  a  delivery  at  the  place  agreed, 
and  that  there  remained  nothing  further  for  him 
to  do,  he  need  not  show  an  acceptance  by  the  ven- 
dee.- 

If  the  vendee  unreasonably  neglect  or  refuse  to 
comply  with  conditions  precedent  to  delivery,  or  to 
receive  the  goods  on  delivery,  the  seller  may,  after 
due  delay  and  proper  precautions,  resell  them,  and 
hold  the  buyer  responsible  for  any  deficit  in  the 
price."'  It  is  common,  and  generally  advisable,  to  sell 
them  at  auction,  but  it  is  not  necessary.^ 


42  Conditional  Sales. 

(1)  Haj'Tvard  v.  Scougall,  2  Camp.  56;  Atkinson  v.  Ritchie,  10  East, 
530;  De  Medeiors  v.  Hill,  5  C.  &  P.  182. 

(2)  Nichols  V.  Morse,  100  Mass.  523;  Pacific  Iron  Works  v.  Long  Is- 
land R.  R.  Co.,  62  X.  Y.  272;  Washburn  Iron  Co.  v.  Russell,  130  Mass. 
543;  Sedgwick  v.  Cottingham,  54  Iowa,  512;  Wright  v.  Weed,  6  U.  C. 
Q.  B.  140;   Supple  v.  Gilmour,  5  U.  C.  C.  P.  318. 

(3)  McLean  v.  Dunn,  4  Bing.  722;  Mertens  v.  Adcock,  4  Esp.  251; 
Girard  v.  Taggart,  5  S.  &  R.  19;  Sands  v.  Taylor,.  5  Johns.  395. 

(4)  Crooks  V.  Moore,  1  Sandf.  279;  Conway  v.  Bush,  4  Barb.  564. 

§  29.  Estoppel,  Delivery  by.  Lord  Blackburn  an- 
nounces the  doctrine  that  there  are  some  cases  in 
which  it  has  been  held  that  the  property  was 
changed,  though  acts  necessary  to  put  the  goods  in  a 
deliverable  state  remained  to  be  done  by  the  vendor ; 
but,  upon  investigation,  it  will  be  found  that  the  con- 
duct of  the  vendor  estopped  him  from  denying  the 
transfer.^  Thus,  where  a  party  negligently  or  cul- 
pably stands  by  and  allows  another  to  contract,  on 
the  faith  and  understanding  of  some  fact  which  he 
can  contradict,  he  can  not  dispute  that  fact  in  an  ac- 
tion against  the  party  whom  he  has  thus  assisted  in 
deceiving.-  Where  a  vendee  is  held  out,  or  suffered 
to  hold  himself  out  as  authorized  to  sell,  the  vendor 
is  estopped  from  denying  his  authority,^  and  the  au- 
thority of  the  vendee  may  even  be  inferred  from  the 
conduct  of  the  vendor.^  In  a  number  of  cases  it  has 
been  held,  that  a  bill  of  sale  and  order  for  the  deliv- 
ery of  the  goods,  or  a  consignment  to  vendee  and 
drafts  drawn  on  account,  or  a  receipt  from  the  vendor 
as  forwarding  merchant,  estopped  the  vendor  from 
disputing  title.'^ 

(1)  Blackburn  on  Sales,  190. 

(2)  Thompson  v,  Blanchard,  4  Comst.  .303. 

(3)  Stephens  v.  Baird,  9  Cowen,  274;  Pickering  v.  Busk,  15  East,  38. 

(4)  Dyer  v.  Pearson,  3  B.  &  C.  38. 

(5)  Davis  V.  Bradley,  24  Vt.  55;  Brewster  v.  Baker,  16  Barb.  613; 
Whitaker  v.  Williams^  20  Conn.  98;  Cox  v.  Buck,  3  Strobh.  367. 


Conditions  Precedent  to  be  Performed  by  Vendor.         43 

Article  7, — Sales  by  Description. 
§  30.  Delivery  of  Described  Article,  Essential. 

5  30.  Delivery  of  Described  Article,  Essential.    If  the 

sale  is  of  a  described  article,  the  tender  of  an  article 
answering  the  description  is  a  condition  precedent  to 
the  vendee's  liability,  and  if  this  condition  be  not  per- 
formed, the  vendee  is  entitled  to  reject  the  article,' 
or,  if  he  has  paid  for  it,  to  recover  the  price,  as  money 
had  and  received  for  his  use;-  whereas,  in  case  of  war- 
ranty, the  rules  are  different.^ 

Lord  Abinger,  in  Chanter  v.  Hopkins,''  protested 
against  the  confusion  which  arises  from  the  prevalent 
habit  of  treating  such  cases  as  warranty,  saying : 

"A  good  deal  of  confusion  has  arisen  in  many  of 
the  cases  upon  this  subject,  from  the  unfortunate  use 
made  of  the  word  warranty.  Two  things  have  been 
confounded  together.  A  warranty  is  an  express  or 
implied  statement  of  something  which  a  party  under- 
takes shall  be  part  of  a  contract,  and  though  part  of 
the  contract,  collateral  to  the  express  object  of  it. 
But,  in  many  of  the  cases,  the  circumstance  of  a  party 
selling  a  particular  thing  by  its  proper  description 
has  been  called  a  warranty,  and  the  breach  of  such  a 
contract  a  breach  of  warranty ;  but  it  would  be  better 
to  distinguish  such  cases  as  non-compliance  with  a  con- 
tract which  a  party  has  engaged  to  fullill ;  as,  if  a 
man  offers  to  buy  peas  of  another,  and  he  sends  him 
beans,  he  does  not  perform  his  contract;  but  that  is 
not  a  warranty  ;  there  is  no  warranty  that  he  shall 
sell  him  peas;  the  contract  is  to  sell  peas,  and  if  he 
sells  him  any  thing  else  in  their  stead,  it  is  a  non- 
performance of  it." 

Notwithstanding  the  apparent  soundness  of  the 
reasoning  of  Lord  Abinger,  our  American  courts  have 


44  Conditional  Sales. 

continued  to  hold  that  words  of  description  in  a  sale 
constitute  a  warranty.^  However,  these  cases  may 
perhaps  be  reconciled  to  some  extent,  upon  the 
ground,  that  in  those  cases  where  it  was  held  that 
there  was  a  warranty,  there  was  something  beyond 
mere  matter  of  description — something  amounting  to 
an  assertion  or  averment  of  a  fact  relating  to  the 
kind,  quality,  or  condition  of  the  article  sold. 

In  the  case  of  Winsor  v.  Lombard,*^  Shaw,  C.  J., 
said :  "  It  is  now  held,  that,  without  express  war- 
ranty or  actual  fraud,  every  person  who  sells  goods 
of  a  certain  denomination  or  description  undertakes, 
as  a  part  of  his  contract,  that  the  thing  delivered  cor- 
responds to  the  description,  and  is,  in  fact,  an  article 
of  the  species,  kind,  and  quality  thus  expressed  in  the 
contract  of  sale."  But  it  has  also  been  held,  that- it 
is  sufficient,  if  the  goods  are  in  specie,  that  for  which 
they  are  sold  and  are  merchantable  under  the  de- 
nomination affixed  to  them  by  the  vendor.'' 

If,  upon  delivery,  the  vendee,  using  due  diligence, 
discover  that  the  goods  do  not  answer  the  description, 
he  must  forthwith'  offer  to  return  them,  and  hold 
subject  to  vendor's  orders.  The  offer  to  return  must 
be  unconditional,  and  not  coupled  with  an  offer  to 
exchange  them  for  something  else — amounting  to  an 
exercise  of  ownership.  Delay  in  offering  to  return, 
or  any  act  equivalent  to  acceptance,  employment, 
use,  or  disposition  of  the  goods,  after  knowledge  of 
deficiency,  if  any  exists,  would  be  construed  either 
into  an  admission  that  there  was  no  such  deficiency, 
or  into  a  waiver  of  his  rights  to  rescind  the  sale  be- 
cause of  such  deficiency.^ 

(1)  Mansfield  v.  Trigg,  113  Mass.  354. 

(2)  Smith  V.  Lewis,  40  Tnd.  98;  Doane  v.  Dunham,  65  111.  512;  Cox  v. 
Long,  69  ^   C.  7. 


L(jnaiiiiJ/i.-<  I'niudenI  fo  he  Porformed  by  Vendor.         45 

(3)  See  I  51,  on  Suit-  l.v   I  loriiplion. 

(4)  Chandler  v.  Hopkins.  4  M.  &  W."399. 

(5)  Hastings  u.  Lovering,  2  Pick.  214;  Hogins  v.  Plympton,  11  Pick. 
99;  Winsor  v.  Lonabard,  IS  Pick.  GO;  Hernshaw  v.  Robins,  9  Mete.  87; 
Lamb  v.  Crafts,  12  Mete.  355;  Bradford  v.  Manly,  13  Ma.ss.  139;  Morrill 
V.  Wallace,  9  N.  H.  114;  Foss  r.  Sabin,  84  111.  564;  Bryant  v.  Sears,  49 
Iowa,  373;  Osgood  v.  Lewis,  2  II.  &  Gill,  495;  Borrekins  v.  Bevan,  3 
Rawle,  23;  Hawkins  v.  Pemberton,  51  N.  Y.  204;  Wolcott  v.  Mount,  7 
Vroom,  262;  Beals  v.  Olmstead,  24  Vt.  114;  Richmond  T.  &  M.  Co.  v. 
Farquat,  8  Blackf.  89. 

(6)  Winsor  v.  Lombard,  18  Pick.  60. 

(7)  Mixon  V.  Coburn,  11  Mete.  559;  Lamb  v.  Crafts,  12  Mete.  353; 
Sweet  V.  Shumvvay,  102  Mass.  365;  Gossler  v.  Eagle  Sugar  Refinery,  103 
Mass.  365;  Fraley  v.  Bispham,  10  Penn.  St;  820;  Whitman  v.  Fruse,  23 
Me.  212. 

(8)  Parsons  on  Contracts,  Vol.  1,  p.  593;  Leslie  v.  Evans,  1  Clev.  Rep. 
273;  Hirschborn  v.  Stewart,  49  Iowa,  418;  Cahen  v.  Piatt,  69  N.  Y.  348; 
Graff  V.  Foster,  67  Mo.  512;  Howard  v.  Hayes,  47  N.  Y.  Sup.  Ct.  89; 
Gammon  v.  Abrams,  53  Wis.  323;  Welch  v.  Gossler,  47  N.  Y.  Sup.  Ct. 
104;  Helden  v.  Roberts,  134  Mass.  38;  Dennis  v.  Stoughton,  55  Vt.  371; 
Maekey  v.  Swartz,  60  Iowa,  710;  Philleo  v.  Sandwich  Mfg.  Co.,  15  Neb. 
625 ;  Proctor  v.  Spratley,  78  Va.  254. 


46  Conditional  Sales. 


CHAPTER   IV. 

CONDITIONS  PRECEDENT  TO  BE  PERFORMED  BY  VENDEE. 

Article  8. — Implied  Conditions. 

§  31.  Acceptance  Not. 

§  32.  Payment. 

§  33.  Cash  Payment. 

§  34.  Payment  by  Check. 

§  35.  Payment  by  Note. 

§  36.  Tender. 

§  37.  To  whom  Payment  can  be  Made. 

§  31.  Acceptance— Not  an   Implied  Condition.     The 

English  statute  of  frauds  provided  that  no  contract 
for  the  sale  of  any  goods,  wares,  or  merchandise,  for 
the  price  of  ten  pounds  sterling  or  upward,  shall  be 
allowed  to  be  good,  except  the  buyer  shall  accept  part 
of  the  goods  so  sold.  Many  features  of  this  statute 
have  been  incorporated  into  the  statutes  of  the  va- 
rious states  of  the  Union.  But  unless  the  formal  ac- 
ceptance of  the  goods  is  provided  for  by  the  statutes 
of  the  state  in  which  the  contract  is  made,  or  is  one 
of  the  express  conditions  of  the  contract,  it  will  not 
be  regarded  as  a  condition  precedent.  Conditional 
sales  partake  of  the  nature  of  executory  contracts  of 
sale;  for,  whether 'the  conditions  be  express  or  im- 
plied, they  nevertheless  provide  for  the  doing  of 
something  in  the  future  which  is  essential  to  make 
the  sale  complete.  However,  an  executory  contract 
of  sale  may  become  a  complete  bargain  and  sale,  by 
the  performance  of  the  conditions  necessary  to  vest 
title,  and  a  right  of  action  thereby  vests  in  the  vendor 
for  the  price  or  value  of  the  goods,  unless  it  be  shown 
that  such  was  not  the  intention  of  the  parties.^ 


Conditions  Precedent  to  he  Performed  hy  Vendee.         47 

(1)  Benjamin  on  Sales,  §  Mi4;  Townsend  v.  Hargraves,  118  Mass- 
325,  Haskins  v.  Warren,  lio  Mass.  53;<;  Jenkins  v.  Jarrelt,  70  N.  C. 
256;  Lester  v.  East,  49  Ind.  5KS;    Hanaur  v.  Rartels,  2  Col.  514. 

§  32.  Payment  a  Condition  Precedent.  In  every  sale, 
unless  otherwise  exi)resse(l,  there  is  an  implied  con- 
dition that  the  price  shall  be  paid,  before  the  vendee 
has  a  right  to  possession  ;  and  this  is  a  condition  pre- 
cedent.^ The  delivery  of  the  goods  and  payment  of 
the  price  are  presumed  to  be  simultaneous  and  con- 
current acts."  The  delivery  of  the  goods  on  such  a 
sale,  with  the  expectation  of  receiving  immediate 
payment,  is  not  an  absolute  delivery,  and  no  title 
vests  in  the  vendee  until  the  price  is  paid.^ 

The  common-law  rule  is,  that  the  vendee  has  no 
right  to  delay  payment  until  demand  is  made,  but 
must  pay  as  soon  as  the  money  is  due.^  However, 
where  the  price  is  made  payable  only  after  demand, 
a  reasonable  time  must  be  allowed  in  which  to  make 
payment,  and  where  payment  is  demanded  after 
banking  hours,  and  payment  by  check  refused,  it  is 
not  unreasonable  delay  for  the  vendee  to  offer  pay- 
ment in  money  on  the  morning  of  the  next  banking 
day.' 

Where  payment  is  made  in  the  mode  requested  by 
the  vendor,  by  mail,  postal  note,  post-office  money 
order,  draft,  or  check,  the  vendee  will  be  discharged 
from  further  liability,  even  though  the  money  never 
reach  the  vendor's  hands.^  If  money  be  transmitted 
in  a  letter,  through  the  post-office,  by  a  vendee  to  his 
vendor,  without  his  previous  direction  or  assent, 
either  expressly  given,  or  to  be  implied  from  his  con- 
duct, usual  course  of  business,  or  particular  facts 
and  circumstances  found,  it  remains,  until  it  reaches 
its  destination  and  is  actually  received,  entirely  at 
the  risk  of  the  vendee.' 


48  Conditional  Sales. 

(1)  2  Parsons  on  Contracts,  §  537;  Turner  v.  Moore,  58  Vt.  455. 

(2)  Benjamin  on  Sales,  §  592;   Elevator  Co.  v.  Bank,  23  Ohio  St.  311. 

(3)  Adams  v.  O'Connor,  100  Mass.  515;  Whitwell  v.  Vincent,  4  Pick. 
449;  Liven  v.  Smith,  Denio,  571;  Conway  v.  Bush,  4  Barb.  564;  Merrill 
V.  Stanwood,  52  Me.  65;  Keeler  v.  Field,  1  Paige,  312;  Russell  v.  Minor, 
22  Wend.  659;  Hanson  v.  Meyer,  6  East,  614;  Hays  v.  Currie,  3  Sandf. 
Ch.  585;  Conger  v.  Railroad  Co.,  17  Wis.  477;  Powell  v.  Bradlee,  9  Gill 
&  Johns.  220;  TTaggerty  v.  Palmer,  6  Johns.  Ch.  437;  Acker  v.  Camp- 
bell, 23  Wend.  372;  Coggill  v.  Railroad  Co.,  3  Gray,  545;  Coil  v.  Willis, 
13  Ohio  St.  28;  Chambers  v.  Frazier,  29  Ohio  St.  362;  Hodgson  v.  Bar- 
rett, 33  Ohio  St.  63. 

(4)  Davis  Sewing  Machine  Co.  v.  McGinnis,  45  Iowa,  538;  Brandon 
Mfg.  Co.  V.  Morse,  48  Vt.  322. 

(5;  Bass  v.  White,  65  N.  Y.  565. 

(6)  Warwick  v.  Noakes,  Peake,  68,  98 ;  Wakefield  v.  Lighgow,  3  Mass. 
249. 

(7)  Crane  v.  Pratt,  12  Gray,  348,  349;  Gurney  v.  Howe,  9  Gray,  404 
40S 

§  33.  Cash  Payment.  This  condition  may  be  ex- 
pressed or  implied,  and  it  has  been  held  that  where 
goods  are  sold  at  a  fixed  price,  to  be  paid  on  a  certain 
day,  and  delivery  is  made  upon  condition  express  or 
implied,  that  until  the  price  is  paid  the  title  is  to  re- 
main in  the  vendor,  payment  is  a  condition  precedent, 
and  until  performed  the  property  is  not  vested  in  the 
vendee.^  Therefore,  if  goods  are  delivered  to  the 
vendee,  accompanied  or  followed"  by  an  invoice  or 
statement  on  which  the  words  "  cash,"  "  net  cash,"  or 
"cash  in  ten  days,"  or  any  other  words  which  mer- 
cantile usage  may  adopt  to  express  this  condition,  no 
title  vests  until  the  condition  shall  have  been  com- 
plied with.'^  But,  although  a  sale  of  goods  be  made 
for  cash,  yet  if  their  delivery  is  unconditional,  and 
without  fraud  or  mistake,  the  title  to  the  goods 
thereby  becomes  vested  in  the  vendee,  notwithstand- 
ing the  cash  is  not  in  fact  paid.^  However,  the  use 
of  the  initials  "C.  0.  D."  manifests  the  vendor's  in- 
tention to  control  the  jus  disponendi.^ 

The  time  allowed  the  vendee  in  which  to  pay  the 


Conditions  Precedent  to  be  Performed  by  Vendee,         49 

cash  may  be  varied  by  custom.  In  some  localities 
"cash"  is  understood 'to  mean  payment  in  ten  days 
(or  a  reasonable  time  in  which  to  receive  and  exam- 
ine the  goods),  while  in  others  it  is  contended  that 
payment  in  twenty  or  thirty  days  is  a  cash  payment. 
But  if  the  vendee  makes  an  assignment  prior  to  pay- 
ment, he  then  puts  it  beyond  his  power  to  comply 
with  the  terms  of  sale,  and  no  title  vests,°  for  the  as- 
signee can  take  no  better  title  than  the  vendee  had.' 
Therefore,  if  the  vendor  is  guilty  of  no  laches  he  may 
recover  the  goods,  even  from  one  who  has  purchased 
from  his  vendee  in  good  faith  without  notice.^  How- 
ever, in  some  states  this  rule  has  been  so  far  modi- 
fied, that  if  the  conduct  of  the  vendor  be  such  as  to 
allow  the  vendee  to  assume  the  position  of  owner, 
innocent  purchasers  from  such  conditional  vendee  ac- 
quire a  good  title.^  But  the  same  courts  have  held, 
that  if  the  contract  partakes  of  the  nature  of  bail- 
ment, with  an  executory  conditional  agreement  for 
the  purchase  of  the  chattel,  the  condition  not  having 
been  performed,  no  title  can  be  acquired  from  the 
bailee  by  a  purchaser.^" 

(1)  Blanchard  v.  Child,  7  Gray,  155 ;  Burbank  v.  Crooker,  7  Gray.  158 ; 
Fifield  V.  Elmer,  2')  Mich.  48;  Dishon  v.  Bigelow,  8  Gray,  159;  Whitney 
V.  Eaton,  15  Gray,  225;  Porter  v.  Pettingill,  12  N.  II.  299;  Luoy  v. 
Bundy,  9  N.  H.  298;  Davis  w.  Emery,  11  X.  H.  230;  Gambling  v.  Read, 
1  Meigs,  281-286;  Heath  v.  Randall,  4  Cush.  195;  Bennett  t'.  Simms,  1 
Rice,  421 ;  West  v.  Bolton,  4  Vt.  558;  Bigelow  v.  Huntley,  8  Vt.  151; 
Smith  V.  Foster,  18  Vt.  182;  Buchmaster  v.  Smith,  22  Vt.  203;  Root  v. 
Lord,  23  Vt.  568;  Armington  v.  Houston,  38  Vt.  448;  Duncan  v.  Stone, 
45  Vt.  118;  Davis  v.  Bradley,  24  Vt.  55;  Tibbetts  v.  Towle,  3  Fairf.  341 ; 
George  v.  Stubbs,  26  Me.  243;  Sawyer  v.  Fisher,  32  Me.  28;  Hotchkiss 
V.  Hunt,  49  Me.  219;  Brown  v.  Haynes,  52  Me.  578^  Bunker  v.  McKin- 
ney,  63  Me  529;  Everett  v.  Hail,  67  Me.  497;  Parris  v.  Roberts,  12  Ired. 
268;  Copeland  v.  Bosquet,  4  Wash.  C.  C.  588;  Sewall  v.  Henry.  9  Ala. 
24;  Dudley  v.  .\bner,  52  Ala.  572;  Sumner  v.  Woods,  67  Ala.  I "9;  Fair- 
banks  v  Eureka  Co.,  67  Ala.  109;  Rawls  v.  Saulsbury,  66  Ga.  '6'J6;  Lam- 


50  Conditional  Sales. 

bert  V.  McCloud,  15    Rep.  780;    Herring  v.    Ilappock,  15  N.  Y.  409 
Hasbrouck  v.  Loundsbury,  26  N.  Y.  59><;  Bean  v.  Edge,  84  N.  Y.  518 
Herschorn  v.  Canney,  98  Mass.  150;    Booraem  v.  Crane,  103  Mass.  522 
Sage  V.  Sleuts,  23  Oliio  St.  1  ;  Little  v.  Page,  44  Mo.  412;   Refining  Co.  v. 
Miller,  7  Phila.  (Penn.)  97. 

(2)  Shenk  v.  Saunders,  15  Gray,  37;  Marston  v.  Baldwin,  17  Mass. 
606;    Hammett  v.  Lineman,  48  N.  Y.  399. 

(3)  Bauendahl  v.  Horr,  7  Blatchf.  548. 

(4)  Foley  v.  Mason,  6  Md.  37;  Henderson  v.  Lauck,  21  Penn.  St.  359; 
Pierson  v.  Hoag,  47  Barb.  (N.  Y.)  243. 

(5)  Wagner  v.  Hallack,  3  Cal.  176. 

(6)  Kraft  v.  Dulles,  2  Cin.  Sp.  Ct.  Rep.  116. 

(7)  Hodgson  v.  Barrett,  33  Ohio  St.  63. 

(8)  Ballard  v.  Burgett,  40  N.  Y.  321;  Sanders  v.  Keber  and  Miller, 
28  Ohio  St.  630. 

(9)  Smith  V.  Lyncs,  5  N.  Y.  41 ;  Comer  v.  Cunningham,  77  N.  Y.  391; 
Wait  V.  Green,  36  ^;.  Y.  556;  Dows  v.  Kidder,  84  N.  Y.  121,  127;  Flu- 
man  V.  McKean,  25  Barb.  474;   Hintermister  v.  Lane,  27  Hun,  497. 

(10)  Ballard  v.  Burgett,  40  N.  Y.  321  ;  Austin  v.  Dye,  4G  N.  Y.  500; 
Comer  v.  Cunningham,  77  N.  Y.  398;  Sargent  v.  Gile,  8  N.  H.  325;  Mc- 
Farland  v.  Farmer,  42  N.  H.  386 ;  King  v.  Bates,  57  X.  H.  446. 

5>  34.  Payment  by  Check  or  Draft.  Where  payment 
is  made  by  a  check,  drawn  by  the  vendee  on  his  banker, 
this  is  a  mode  of  making  a  cash  payment,  and  not 
the  acceptance  of  a  security.  Such  payment  is  con- 
ditional, and  if  the  check,  upon  due  presentation,  is 
dishonored,  the  vendor's  right  to  retake  the  goods 
from  the  vendee  remains  in  full  force. ^  But  if  a 
check  received  in  payment  is  not  presented  within 
reasonable  time,  and  the  drawer  is  injured  by  the  de- 
lay, the  check  will  operate  as  an  absolute  payment.^ 
If  payment  is  made  by  a  check  indorsed  by  the 
vendee,  which  the  vendor  might  have  refused,  but 
instead  of  doing  so,  keeps  the  check,  presents  it  to 
the  bank  for  payment,  and  sues  upon  it,  he  must  be 
deemed  to  have  accepted  the  check  in  satisfaction  of 
the  goods  sold,  and  the  vendee's  liability  is  only  on 
his  indorsement.^ 

A  draft  on  a  third  person,  received  by  the  vendor 
from  the  vendee,  is  also  presumed  to  be  a  conditional 


Conditions  Precedent  to  he  Performed  hy  Vendee.  51 

payment,  iind  the  burden  is  upon  the  vendee  to 
prove  an  agreement  that  it  was  to  be  an  absolute 
payment.^  In  the  case  of  Case  v.  Seass,^  goods  were 
sold  to  a  firm,  and  drafts  for  acceptance  sent.  Mean- 
while, the  firm  dissolved,  and  the  succeeding  member 
ofi^ercd  his  own  draft  in  settlement,  which  the  vendor 
refused.  Whereupon,  the  succeeding  member  again 
sent  his  own  acceptances,  with  the  false  statement 
that  the  retiring  member  was  east,  but  if  the  drafts 
were  unsatisfactory,  he  would  obtain  an  indorser. 
The  vendor  replied,  that  he  was  in  need  of  the  paper 
at  once,  and  retained  it.  The  retiring  member  knew 
of  this  correspondence,  and  retained  control  of  the 
goods  until  it  was  closed.  Held,  that  as  the  paper 
of  the  only  debtor  supposed  to  be  within  reach  was 
forced  upon  the  vendor,  and  no  oifer  was  made  to 
return  the  merchandise,  there  was  no  implication, 
from  the  correspondence,  of  a  discharge  of  the  other 
debtor,  and  that  if  there  was,  it  was  made  nugatory 
by  the  fraud  of  the  purchasers. 

Where  payment  is  by  exchange,  the  vendee,  in 
purchasing  a  bill  of  exchange  for  remittance,  is  held 
only  to  the  degree  of  care  which  a  prudent  business 
man  exercises  in  conducting  his  own  business,  and 
he  is  not  rendered  liable  by  the  unexpected  failure 
of  the  bank  drawing  the  bill  before  it  can  be  pre- 
sented.^ 

(1)  Benjamin  on  Sales,  §  731 ;  Everett  v.  Collins,  2  Camp.  515;  Smith 
V.  Ferrand,  7  B.  &  C.  19;  Pierce  f.  Davis,  1  Moody  &  Rob.  365;  Hough 
V.  May,  4  Ad.  ii,  E.  954;  Small  v.  Franklin  Mining  Co.,  99  Mass.  277; 
Weddigen  v.  Boston  Elastic  Fabric  Co.,  100  Mass.  42'2;  Phillips  v.  Bal- 
lard, 5S  Ga.  256;  Sweet  v.  Titus,  67  Barb.  327;  Hodgson  v.  Barrett,  33 
Ohio  St.  63;  Fleig  v.  Sleet,  43  Ohio  St.  53;  Blair  v.  Wilson,  28  Gratt. 
165;  Kermeyer  v.  Newby,  14  Kan.  164;  Woodburn  v.  Woodburn,  115 
111.  427. 

(2)  Hopkins  v.  Ware,  L.  R.  4  Ex.  26S;  Smith  v.  Miller  43  N.  Y. 
171. 


52  Conditional  Sales. 

(3)  Sellers  v.  Johnson,  65  N.  C.  104;   Redpath  v.  Kolfage,  16  C.  Q.  B. 
433. 

(4)  League  v.  Waring,  85  Penn.  St.  244;   Hall  v.  Stevens,  40  Hun  (N. 
Y.),  578. 

(5)  Case  v.  Seass,  44  Mich.  195. 

(6)  Underwriters'  Wrecking  Co.  v.  Uilderwriters,  40  Ark.  161. 

§  35.  Payment  by  Note.  Where  it  is  part  of  a  con- 
tract for  sale  of  goods,  that  they  are  to  be  paid  for  by 
the  negotiable  note  of  the  vendee,  such  payment  is  a 
condition  precedent  to  the  sale,  and  the  title  to  the 
goods  will  not  vest  in  the  vendee  by  a  delivery  to 
him  of  the  goods,  without  such  payment,  or  waiver 
of  the  condition  by  the  vendor.^  However,  the  giv- 
ing and  acceptance  of  a  note  for  the  amount  of  a  debt 
does  not  extinguish  the  indebtedness,  unless  an  in- 
tent to  extinguish  is  shown.  Such  intent  may  be 
either  expressed,  or  implied  from  the  circumstances ; 
and  is  a  question  for  the  jury.^ 

If  the  note  of  the  vendee  is  to  be  "  satisfactorily  in- 
dorsed "  by  a  third  person,  the  taking  of  the  note  by 
the  vendor  without  indorsement,  on  the  promise  of 
the  purchaser  that  the  indorsement  should  be  fur- 
nished, and  making  no  subsequent  demand  for  such 
indorsement,  and  failure  to  return  the  note,  do  not, 
as  matter  of  law,  amount  to  a  waiver  of  the  con- 
dition.-^ 

If  a  bill  or  note  be  indorsed,  and  given  by  the  ven- 
dee to  the  vendor  merely  as  collateral  security,  the 
duty  of  the  vendor  is  the  same  as  if  the  bill  had  been 
given  in  conditional  payment,  and  if  he  neglect  to 
present,  or  to  give  notice  of  dishonor  to  the  vendee, 
the  vendee  will  be  discharged  from  liability  on  the 
bill,  and  the  laches  will  operate  so  as  to  constitute 
the  bill  absolute  payment  for  its  amounf 

Where,  however,  payment  is  made  in  paper  to 
which  the  vendee  is  not  a  party,  it  is  deemed  to  have 


Conditions  Precedent  to  he  Performed  by  Vendee.         53 

passed  as  cash.^  If  the  securities  thus  passed  were 
forged,  or  not  what  on  their  face  they  purport  to  be, 
the  vendor  would  have  the  right  to  rescind  the  sale 
for  failure  of  consideration.  And  if  the  securities, 
though  genuine,  were  known  to  the  vendee  to  be 
worthless  when  he  passed  them,  his  conduct  would 
be  deemed  fraudulent,  and  the  vendor  would  be  en- 
titled to  rescind  the  sale,  and  bring  an  action  in 
replevin  for  the  goods.*^  The  vendor  must  offer  to 
return  the  note  unless  he  proves  it  absolutely  worth- 
less.' 

But  if  the  worthless  character  of  the  securities  is 
unknown  to  both  parties,  it  would  be  a  case  of  mutual 
mistake  of  fact,  and  the  liability  of  the  vendee  would 
continue.*^ 

Where  the  vendee,  acting  as  the  agent  of  an  un- 
disclosed principal,  buys  goods,  and  tenders  his  own 
note  in  settlement,  the  presumption  that  the  note 
was  taken  in  payment  is  rebutted,  and  the  vendor 
may  resort  to  the  principal  for  payment.^  And 
where  a  firm  agreed  to  settle  for  merchandise  with  a 
note,  and  after  dissolution  a  partnership  note  is 
given  by  the  remaining  partner,  the  other  can  repu- 
diate his  liability  thereon ;  and  if  he  is  released,  the 
vendor  can  treat  the  note  as  different  from  that 
agreed  on,  and  it  can  not  then  be  regarded  as  pay- 
ment.^° 

Where  by  mistake  a  note  for  a  less  amount  than 
due  is  executed,  the  title  does  not  pass.^^ 

But  if  delivery  be  made  without  a  demand  of 
the  notes,  within  a  reasonable  time,  the  title  will 
pass.^- 

(1)  Young  V.  Kansas  Mfg.  Co.,  (Fla.)  2  So.  Rep.  817;  Whitney  v. 
Eaton,  15  Gray  (Mass.),  225;  Osborn  v.  Gantz,  38  N.  Y.  Sup.  Ct.  148; 
Budlong  V.  Cottrell,  64  Iowa,  234;  Seed  v.  Lord,  66  Me.  580. 


54  Conditional  Sales. 

(2)  Archibald  v.  Argoll,  53  111.  307;  Willis  v.  Robinson,  80  Mo.  47, 
Heath  v.  White,  o  Utah,  474;  McGuire  v.  Bidwell,  64  Tex.  43;  Ex 
parte  Williams,  17  S.  C.  396. 

(3)  Kinney  v.  Ingalls,  126  Mass.  488. 

(4)  Eenjamin  on  Sales,  §  737. 

(5)  Camidge  v.  Allenby,  6  R.  &  C.  373.  • 

(6)  See  Article  on  Fraud  of  Vendee,  18  Central  Law  Journal,  405: 
Ponieroy's  Equity  Jurisprudence,  §§  901-905. 

(7)  Estabrook  v.  Sweet,  16  Mass.  303. 

(8)  Roberts  v.  Fisher,  43  N.  Y.  159. 

(9)  Lovell  V.  Williams,  125  Mass.  439. 

(10)  Goodspeed  v.  South  Bend  Plow  Co.,  45  Mich.  237. 

(11)  Littirel  v.  St.  John,  4  Blackf.  (Ind.)  326. 

(12)  Lupin  V.  Marie,  6  Wend.  (N.  Y.)  77;  Mannequin  v.  Sands,  25 
N.  Y.  640;  Smith  v.  Lynes,  5  N.  Y.  (1  Seld.)  41. 

J  36.  Tender.  A  proper  tender  is  an  equivalent 
of  payment,  and  is  as  much  of  a  discharge  of  the  ven- 
dee's duty  as  an  actual  payment.  A  proper  tender 
requires  the  production  and  offer  to  the  vendor  of  an 
amount  of  money  equal  to  the  price  of  the  goods  sold. 
But  the  actual  production  of  the  money  may  be  dis- 
j^ensed  with  by  the  vendor.^ 

The  mere  offer  to  pay,  it  not  appearing  that  the 
vendee  had  the  money  ready,  does  not  amount  to  a 
tender.'-  However,  the  production  of  the  money,  and 
the  actual  offer  of  it,  may  be  dispensed  with,  if  the 
vendee  is  ready  and  willing  to  pay  it,  and  is  about  to 
produce  it,  but  is  prevented  from  so  doing  by  a  decla- 
ration on  the  part  of  the  vendor  that  he  will  not  or 
can  not  receive  it.^  So,  if  a  tender  is  prevented  by 
any  contrivance  or  evasion  of  the  party  to  whom  the 
money  is  to  be  paid,  it  will  be  equivalent  to  a  tender, 
or  a  sufficient  excuse  for  not  making  it.*  He  who 
makes  a  tender  is  not  bound  to  count  out  the  money ; 
it  is  enough  if  the  money  be  there  and  offered,  so 
that  the  vendor,  if  he  choose,  may  count  it ;''  but  the 
sum  so  produced  must  be  the  correct  amount  due.* 
A  tender  of  a  larger  sum  than  is  due,  with  a  demand 


Conditions  Precedent  to  he  Performed  hy  Vendee  55 

for  change,  is  not  a  good  tender/  and  it  is  well  set- 
tled  in  England,  that  there  can  be  no  valid  tender  of 
a  })art  of  an  entire  sum  due,  though  a  vendee  may 
make  a  valid  tender  on  one  of  several  distinct  pur- 
chases, if  he  specify  the  account  or  purchase  on  which 
he  makes  the  tender.  He  may  also  make  a  tender  of 
a  gross  amount  of  several  demands,  if  enough  be  ten- 
dered to  pay  them  all.^ 

Tender  of  balance  due  after  deducting  a  set-off  will 
not  be  allowed  ;  but,  upon  j)ayment  of  the  entire  sum 
due  into  court,  the  vendee  may  set  up  the  plea  of  set- 
off upon  the  suit  of  the  vendor.^ 

And  a  plea  of  tender  is  not  supported  by  proving 
an  offer  of  a  promissory  note  due  from  the  vendor  to 
the  vendee.^"  The  rule  seems  to  be  well  established 
by  numerous  authorities,  that  a  tender  must  be  an 
unconditional  offer  of  the  money,  and  if  accompanied 
by  any  qualifying  words,  or  with  a  demand  of  any 
thing  to  be  done  by  the  party  to  whom  the  tender  is 
made,  beyond  the  receipt  of  the  money  tendered,  it 
will  avoid  the  tender.^^ 

The  vendee  has  no  right  to  insist  that  the  v^endor 
shall  admit  that  no  more  is  due  in  respect  of  the  de- 
mand for  which  the  tender  is  made,  and  if  tender 
be  made  of  a  sum  of  money  in  full  for  all  legal 
claims,  the  vendor  may  receive  the  money,  protest- 
ing that  it  is  not  sufficient,  and  if  he  pass  it  to  the 
vendee's  credit  on  account,  without  the  vendee  ex- 
pressing any  dissent,  the  acceptance  of  the  tender 
will  be  no  bar  to  the  vendor's  right  to  recover  such 
sum  as  may  be  found  due  him,  exceeding  the  amount 
of  the  tender/- 

(1)  Sargent  v.  Graham,  5  N.  [I.  440. 

(2)  Fuller  i'.  Little,  7  N.  II.  .535;  Breed  v.  Hurd,  6  Pick.  356;  Wheeler 
V.  Knaggs,  8  Ohio,  169;  Bakeman  v.  Pooler,  15  Wend.  637;  Brown  v. 
Gilmore,  S  Greenl.  107;  Cashman  v.  Martin,  50  How.  Pr.  337. 


56  Conditional  Sales. 

(3)  2  Greenl.  Ev.  §  603;  Barker  v.  Parkenhorn,  2  Wash.  C.  C.  142; 
Blight  V.  Ashley,  Peters  C.  C.  15;  Parker  v.  Perkins,  8  Cush.  318. 

(4)  South  worth  v.  Smith,  7  Cush.  391,  393;  Borden  v.  Borden,  5  Mass. 
67,  74;  Gilmore  v.  Holt,  4  Pick.  258,  264;  Tasker  v.  Bartlett,  5  Cush. 
359;  Hazard  v  Loring,  10  Cush.  267;  Sands  u.  Lyon,  18  Vt.  18;  Thorne 
V.  Mosher,  5  C.  E  Green,  257. 

(5)  Wheeler  v.  Knaggs,  8  Ohio,  169  ;  Behaly  v.  Hatch,  Walker  (Miss.) 
369 ;  Breed  v.  Hurd,  6  Pick.  356. 

(6)  Isherwood  v.  Whitmore,  11  M.  &  W.  347. 

(7)  Benjamin  on  Sales,  §  718. 

(8)  Thetford  v.  Hubbard,  22  Vt.  440. 

(9)  Benjamin  on  Sales,  §  720. 

(10)  Gary  v.  Bancroft,  14  Pick.  315;  Bellows  v.  Smith,  9  N.  H. 
285. 

(11)  Richardson  v.  Boston  Chemical  Laboratory,  9  Mete.  45,  52; 
Thayer  v.  Brackett,  12  Mass.  450;  Loring  v.  Cooke,  3  Pick.  48;  Robin- 
son V.  Batchelder,  4  N.  H.  40;  BufFum  v.  Buffum,  11  N.  H.  451;  Brown 
V.  Gilmore,  8  Greenl.  110;  Hepburn  v.  Auld,  I  Cranch,  321;  Bacon  v. 
Conn,  1  Sm.  &  M.  Ch.  348;  Eastland  v.  Longshorne,  1  Nott.  &  McC. 
194;  Brooklyn  Bank  v.  De  Grauw,  23  Wend.  342;  Wood  v.  Hitchcock, 
20  Wend.  47;  Hulos  v.  Slevin,  53  How.  Pr.  356. 

(12)  Gassett  v.  Andover,  21  Vt.  342. 

§  37.  To  whom  Payment  can  be  Made.  Payment 
can  be  properly  made  either  to  the  vendor  or  his 
duly  authorized  agent,  or  even  to  one  who  appears  to 
be  clothed  with  authority.^  Each  case  of  payment  to 
one  other  than  the  vendor,  must  of  necessity  be  de- 
pendent for  its  validity  upon  the  peculiar  facts  sur- 
rounding the  transaction. 

Payment  to  an  attorney  has  been  held  to  be  as 
effectual  as  it  made  to  the  vendor."  And  an  attorney 
has  authority  to  receive  payment  as  well  after  judg- 
ment as  before,"  but  his  authority  is  limited  to  the 
receipt  of  money  only."* 

But  if  the  vendor  place  one  in  a  position  to  hold 
himself  out  to  the  public,  or  to  an  individual,  as  an 
agent,  the  vendor  is  bound  by  the  acts  of  said  agent, 
whether  authorized  or  not — the  doctrine  of  estoppel 
preventing  the  denial  of  the  agent's  apparent  author- 
ity.^   Thus,    payment   to  a  clerk   in  vendor's   place 


Conditions  Precedent  to  be  Performed  by  Vendee.         57 

of  business,  apparently  elotbed  with  authority  to  ac- 
cept payment,  would  be  payment  to  the  vendor.*^ 
Where  the  usages  or  customs  of  a  business  are  known 
to  the  public,  the  auent  is  presumed  to  have  the  full 
powers  conimoidy  exercised  by  an  agent  therein.'  Or 
where,  in  former  dealings  sanctioned  by  the  vendor, 
payment  of  bills  have  been  made  to  an  agent,  pay- 
ment to  the  agent  under  similar  circumstances  would 
be  payment  to  the  vendor.** 

(1)  Willmott  V.  Smith,  M.  &  M.  238;  Harris  v.  Simmerman,  81  111. 
413;  Eclipse  Windmill  Co.  v.  Thorson,  46  Iowa  181. 

(2)  Branch  v.  Burnley,  1  Cal.  147. 

(3)  Brackett  v.  Norton,  4  Conn.  517;  Erwin  v.  Blake,  8  Pet.  18;  Gray 
V.  Wass,  1  Greenl.  257;   Lewis  v.  Gamage,  1  Pick.  347. 

(4)  Savoury  v.  Chapman,  8  Dowl.  656;  Jackson  v.  Bartlett,  8  John-. 
361;  Kellogg  v.  Gilbert,  10  Johns.  220;  Carter  v.  Talcot,  10  Vt.  471; 
Wilson  V.  Wadleigh,  36  Me.  496.  '  * 

(5)  Lewis  V.  Bourbon,  12  Kan.  186;  Dodge  u.  McDonnell,  14  Wis.  553; 
Booth  V.  Wiley,  102  111.  84;  Airey  v.  Okolona  Sav.  Inst.,  33  La.  Ann. 
134t);  Nicholson  v.  Moog,  65  Ala.  471:  Amer.  Merchants'  Exp.  Co.  v. 
Milk,  73  111.  224;  Kingsley  v.  Fitts,  51  Vt.  414;  Kelton  v.  Leonard,  54 
Vt.  230. 

(6)  Barrett  v.  Deere,  Moody  &  M.  200;  Leslie  v.  Knickerbocker  Life 
Ins.  Co.,  63  N.  Y.  27,  34;  Swire  v.  Francis,  3  App.  Cas.  106;  Phillip  v. 
Aurora  Lodge.  87  Ind.  505;  White  v.  Leighton,  15  Neb.  424;  Haskins 
V.  Swain,  61  Cal.  338. 

(7)  Bishop  on  Contracts,  §  1103;  Minor  i-.  Mechanics'  Bank,  1  Pet. 
46,  70;  Pickering  v.  Busk,  15  East,  38;  Whitehead  v.  Tuckett,  15  East, 
400;  Wright  v.  Solomon.  19  Cal.  64;  Chouteaux  v.  Luch,  6  Harris 
(Penn.),  224:  York  Co.  Bank  v.  Stein,  24  Md.  447;  Williams  v.  Getty, 
T.  Casey  (Penn.),  461;  Mount  Olive  Cemetery  v.  Shubert,  2  Head,  116. 

(8)  Watts  u.  Divor,  1  Grant  (Penn.),  267:  Farmers'  Mut.  Ins.  Co.  v. 
Taylor,  23  Smith  (Penn.),  :i42;  Davis  v.  Lane,  10  N.  H.  156;  Miller  v. 
Moore,  1  Cranch  C.  C.  471. 


68  Conditional  Sales. 


Article  9. — Express  Conditions. 

§  38.  Sales  on  Trial  or  Approval. 

§  39.  Memorandum  Sales. 

§  40.  Payment,  Delivery  Without. 

§  41.  Special  Cases. 

§  42.  Railroad  Equipment 

§  43.  Statutory  Requirements. 

^  38.  Sales  on  Trial  or  Approval.  In  this  class  of 
cases  there  is  no  sale  until  the  approval  is  given, 
either  expressly  or  by  implication,  resulting  from 
keeping  the  goods  beyond  the  time  allowed  for  trial.^ 
The  mere  failure  to  return  the  goods  within  the  time 
specified  for  trial,  makes  the  sale  absolute,-  but  the 
vendee  is  entitled  to  the  full  time  agreed  on  for  trial. ^ 
No  definite  period  of  trial  having  been  agreed  upon, 
a  reasonable  time  will  be  presumed  or  im.plied.^ 
However,  the  time  for  trial  having  been  designated 
in  the  contract,  the  vendee  can  not  avoid  payment 
because  he  failed  to  make  trial  within  the  time  so 
designated,'^  nor  will  the  exercise  of  an  arbitrary 
discretion  release  him.*^  Where  the  vendee,  by  con- 
tract, is  to  have  one  day  for  trial,  the  word  day 
means  the  entire  day.''  Where  a  party  is  entitled  to 
make  trial  of  goods,  and  the  trial  involves  the  con- 
sumption or  destruction  of  what  is  tried,  it  is  a  ques- 
tion for  the  jury,  whether  the  quantity  consumed  was 
more  than  necessary  for  trial,  for,  if  so,  the  sale  will 
have  become  absolute  by  reason  of  the  approval  im- 
plied from  thus  accepting  a  part  of  the  goods.^ 

(1)  Nowbray  v.  Cody,  40  Iowa,  604;  Mc'^'ormick  v.  Bassal,  50  Iowa, 
52^:  Delamater  v.  Chappell,  48  Mil.  244;  Colton  v.  Wise,  17  111.  App. 
395. 

(2)  Benjamin  on  Sales,  §  505;  Humphries  v.  Carvalho,  16  East,  45; 
Johnson  v.  McLane,  7  Blackf.  501 ;  Speckler  v.  Marsh,  36  Md.  222 ;  Dewey 
V.  Erie  Borough,  14  Penn.  St.  211;  Aultman  v.  Theiver^  34  Iowa,  272; 


Conditions  Precedent  to  be  Performed  by  Vendee.         59 

Prairie  Fiurn»ir  <  o.  v.   laylor,  il'J  111.  44  >:    Waters  Healing  Co.  v.  Mans- 
field, 48  Vt.  .;Ts. 

(o)  Aiken  v.   Hyde,  99  Mass.   183;    Hartford    Sorghum    Mfg.  Co.  v. 
Brush,  43  Vt.  528. 

(4)  Story  on  Sales,  §  128. 

(5)  Thomson-Houston  Electric  Co.  v.  Brush-Swan  Electric  L.  and  P. 
Co.,  31  T.  Rep.  535. 

(6)  Flint  V.  Cook,  102  Ind.  371. 

(7)  Fuller  v.  Schroeder,  (Neb.)  31  N.  W.  Rep.  109. 

(8)  Benjamin  on  Sales,  §  596. 

5  39.  Memorandum  Sales.  Mercantile  usage  has 
given  to  these  words  a  special  significance ;  and,  when 
appearing  upon  a  statement  of  account,  accompany- 
ing or  following  the  delivery  of  personal  property, 
they  mean  that  the  goods  are  sent  to  the  vendee  sub- 
ject to  his  approval,  title  remaining  in  the  vendor 
until  the  vendee  indicates  his  approval  or  acceptance 
of  the  goods. 

Evidence  of  usage  or  custom  is  competent,  and  if 
knowledge  of  it  may  be  imputed  to  the  vendee,  it 
will  be  presumed  that  the  parties  contracted  with 
reference  to  such  usage,  there  being  nothing  in  the 
contract  to  the  contrary.^  Accepting  the  defini- 
tion given  by  mercantile  usage,  accej^tance  becomes 
an  express  condition  to  be  performed  before  title 
passes. 

The  acceptance  must  be  in  fact,  and  by  means  in- 
tended to  be  conveyed  to  the  knowledge  of  the  ven- 
dor. It  is  not  enough  to  })rove  that  the  proposal  was 
assented  to  by  a  mental  act,  nor  by  conduct  unknown, 
and  not  communicated  to  the  vendor.-  It  is  enough, 
however,  to  prove  that  the  assenting  party  duly 
mailed,  or  delivered  to  the  telegraph  company,  an 
unqualified  assent ;  but  it  is  not  necessary  to  prove 
that  the  assent  actually  came  to  the  vendor's  knowl- 
edo^e.^  But  the  riii-ht  of  the  vendee  to  assent  is  ex- 
tinguished  if  he  make  an  assignment  or  part  with 


60  Conditional  Sales. 

the  possession  of  the  goods,''  for  it  is  then  beyond 
his  power  to  carry  out  the  terms  of  the  contract. 

The  fact,  however,  that  the  goods  were  actually 
forwarded  or  delivered  to  the  vendee  before  the  re- 
ceipt of  the  statement  or  letter  containing  the  terms 
of  sale,  is  not,  necessarily,  a  waiver  of  the  conditions 
of  sale,^  for  it  is  clear  that  there  may  be  an  actual 
possession  without  conferring  the  right  to  posses- 
sion.^ 

(1)  Salmon  Falls  Mfg.  Co.  v.  Goddard,  14  Row.  (U.  S.)  446. 

(2)  White  V.  Corliss,  46  N.  Y.  4G7. 

(3)  Vassar  v.  Camp,  11  N.  Y.  441;  Parks  v.  Cornstock,  59  Barb.  16: 
Trevor  v.  Wood,  36  N.  Y.  307. 

(4)  Kraft  v.  DuUis,  2  Gin.  S.  C.  Rep.  116. 

(5)  Shenk  v.  Saunders,  15  Gray,  37;  Marston  v.  Baldwin,  17  Mass. 
606 ;  Hammett  v.  Lineman,  48  N.  Y.  399. 

(6)  Warner  v.  Porter,  2  Disney,  126. 

§  40.  Delivery  without  Payment.  On  a  sale  of  per- 
sonal property,  where  the  right  to  receive  payment 
before  delivery  is  waived  by  the  vendor,  and  imme- 
diate possession  is  given  to  the  vendee,  and  yet,  by 
express  agreement,  the  title  is  to  remain  in  the  ven- 
dor until  the  payment  of  the  price,  such  payment  is 
strictly  a  condition  precedent ;  and,  until  performance, 
the  right  of  property  is  not  vested  in  the  vendee.^ 
Even  where  it  is  agreed  that  the  title  to  chattels 
paid  for  in  part  only,  shall  not  pass  until  full  pay- 
ment, the  sale  is  a  conditional  one.^  The  vendee  can 
convey  no  title  by  sale,  and  the  property  may  be  re- 
claimed, in  the  hands  of  his  innocent  vendee,  by  the 
original  vendor.'^  And  the  property  is  not  subject  to 
seizure  by  creditors  of  the  vendee  until  they  have 
paid  or  tendered  the  vendor  the  amount  due.^  But 
even  a  tender  of  the  amount  due  will  not  avail  to 
make  a  levy  good,  if  the  property  has  been  taken 
possession  of  by  the  vendor.^    In  the  case  of  Lewis  v. 


Conditions  Precedent  to  he  Performed  hy  Vewlee.         61 

McCabe/'  certain  liquors  were  sold  on  condition  that 
they  were  to  remain  the  property  of  the  vendors  until 
paid  for,  but  with  the  understanding  that  if  any  were 
sold  by  the  vendees,  who  were  retail  dealers,  l)efore 
payment,  the  vendors  could  enforce  the  conditions 
only  against  what  remained  unsold.  This  was  held 
to  be  a  valid  conditional  sale,  and  that  the  vendors' 
title  to  the  portion  unsold  was  good  as  against  an  at- 
taching creditor  of  the  vendees. 

Again,  in  the  case  of  Blanchard  v.  Cooke,^  the  ven- 
dor sold  a  stock  of  goods,  with  the  agreement  that 
the  title  should  remain  in  him  until  paid  for;  thcit,  in 
case  of  payments  being  made  upon  account,  title  to 
the  goods  should  vest  in  the  vendee  in  proportion  to 
the  amount  paid.     That,  as  to  the  future  additions  to 
the  stock,  the  vendor  should  be  the  owner  of  a  frac- 
tional part  thereof,  which  fractional  part  was  at  all 
times  to  bear  the  same  proportion  to  the  balance  then 
due  and  unpaid  that  the  whole  amount  of  goods  bore 
to  the  sum  originally  due.     The  contract  contained  no 
provision  authorizing  the  vendor  to  take  possession 
of  the  goods  in  case  of  default  in  payment.     And, 
upon  consideration,  the  court  held  that  the  contract 
was  not  a  mortgage,  and  was  not  per  se  fraudulent  or 
void  as  to  creditors,  and  that  the  vendor  was  entitled 
to  take  possession  of  the  entire  stock,  including  addi- 
tions, upon  non-compliance  by  the  vendee  with  the 
terms  of  purchase.     But  the  vendor  must  not  have 
been  guilty  of  laches,  in  asserting  his  rights,  nor  his 
conduct  have  been  such  as  to  waive  performance  of 
the  condition.'^ 

The  condition  of  payment  is  not  waived  by 
taking  the  vendee's  notes  for  the  price,''  especiallv 
where  the  note  recites  the  conditions. ^°  Where 
delivery  was   not  to  be   made  until   a  part  of  the 


62  Conditional  Sales, 

price  was  paid,  and  the  residue  secured  by  suffi- 
cient indorsers  on  notes,  if  tlie  goods  are  delivered 
before  such  indorsements  are  made,  the  vendor,  after 
disposing  of  part  of  the  notes,  can  not  again  assert 
his  title  to  the  goods/^  But  where,  under  a  contract 
for  the  sale  of  chattels,  a  delivery  of  a  portion  of  the 
property  sold  was  made  to  the  purchaser,  under  an 
agreement  that  a  note  should  be  given  for  the  whole 
quantity,  upon  delivery  of  the  residue  at  a  future 
day,  it  was  held  that  the  delivery  of  the  first  parcel 
was  conditional ;  and  that,  on  the  delivery  of  the 
residue,  and  the  refusal  of  the  vendee  to  give  the 
notes  and  to  deliver  the  first  parcel  on  demand,  an 
action  of  replevin  might  be  sustained.^^ 

Where  time  is  the  essence  of  the  contract,  failure 
to  pay  an  installment  on  time  entitles  the  vendor  to 
possession. ^^  And  commencing  suit  for  amount  due 
on  a  conditional  contract  of  sale,  and  the  issuing  of 
an  attachment,  does  not  amount  to  a  waiver  of  the 
vendor's  right  to  retake  the  goods."  But  a  forfeiture 
is  waived  where  the  vendor,  after  default,  makes  a 
new  contract  with  the  vendee  and  others,  and  re- 
ceives from  them  all  the  past  due  installments  ;^^ 
however,  waiver  of  one  forfeiture  is  not  evidence  of 
waiver  of  subsequent  forfeitures.  And  if  one  of  the 
conditions  be  that  the  chattel  should  be  kept  at  a 
certain  place,  and  should  not  be  removed  therefrom, 
without  the  vendor's  written  consent,  the  requisite 
consent  to  its  removal  to  another  certain  place  having 
been  once  obtained,  does  not  authorize  a  second  re- 
moval to  still  another  place.^''' 

A  conditional  sale  of  a  machine,  under  the  terms 
of  which  the  title  does  not  pass  to  the  vendee  until 
the  payments  provided  for  are  made,  will  not  enable 
the  mortgagee  of  the  house  in  which  the  machinery 


Conditiona  Precedent  to  he  Performed  hy  Vendee.         63 

is  placei],  to  sell  at  a  foreclosure  sale,  under  a  mort- 
gage of  the  house  and  all  the  machinery  therein,  or 
to  be  thereafter  placed  therein,  although  he  had  no  no- 
tice of  the  terms  of  the  sale  of  the  machinery.^'  For  it 
is  well  settled,  that  the  lien  which  attaches  to  "after 
acquired  property  "  is  suljject  to  all  the  conditions 
with  which  it  is  incumbered  when  it  comes  into  the 
hands  of  the  mortgagor.  The  mortgagee  takes  just 
such  an  interest  in  the  property  as  the  mortgagor  ac- 
quired— no  more,  no  less.  And  the  mortgagor  ac- 
quires no  title  until  the  terms  of  the  sale  shall  have 
been  complied  with.^^  If  the  chattels  be  mortgaged 
by  the  vendee  before  the  terms  of  sale  are  com- 
plied with,  the  mortgage  confers  no  rights  on  the 
mortgagee,  as  against  the  paramount  claim  of  the 
vendor/^  Yet,  it  has  been  held  that  the  vendee  had 
a  right  to  mortgage  the  property,  which,  upon  his 
making  the  last  payment  and  receiving  the  bill  of 
sale,  vested  in  him,  so  that  the  mortgage  took  pre- 
cedence of  an  attachment.-^  However,  the  execution 
of  such  a  mortgage  before  fulfilling  the  obligations  of 
the  contract,  is  an  assumption  of  ownership,  and  the 
intent  with  which  it  is  done  is  immaterial,  so  far  as  con- 
cerns the  vendor's  right  to  reclaim  the  property.^ 

One  who  sells  a  chattel,  under  an  agreement  that 
the  property  is  to  remain  in  the  vendor  until  pay- 
ment, may,  in  the  absence  of  special  statutes,  repos- 
sess himself  of  the  chattel  without  refunding  partial 
payments  that  have  been  made ;--  however,  it  is  his 
duty  to  notify  the  vendee  of  his  claim,  in  order  that 
the  latter  may  pay  or  tender  the  amount  claimed  to 
be  due.^  But  the  right  of  the  vendor  to  take  the 
property,  in  case  of  default,  does  not  confer  upon  the 
vendee  the  right  to  return  the  property.-"* 

Conditional  contracts  of  sale  are  not  per  se  fraudu- 


64  Conditional  Sales. 

lent.^  However,  it  has  been  held  that  secret  liens 
which  treat  the  vendor  of  personal  property,  who  has 
delivered  possession  of  it  to  the  vendee,  as  owner  until 
payment  of  the  purchase  money,  can  not  be  main- 
tained ;  they  are  constructively  fraudulent  as  to 
creditors.-'^ 

A  transaction,  in  eifect  a  conditional  sale  of  chat- 
tels, may  be  afterward  modified  so  as  to  make  the 
contract  a  mortgage;'"'  and,  being  so  modified,  would 
be  governed  by  the  statutes  on  that  subject. 

(1)  Putnam  u.  Lamphier,  36  Cal.  151;  Kohler  v.  Hayes,  41  Cal.  455; 
Marston  v.  Baldwin,  17  Mass  606;  Hussey  v.  Thornton,  4  Mass.  405; 
Reed  v.  Upton,  10  Pick  (Mass.)  522,  Heath  v.  Randall,  4  Gush.  (Mass.) 
195;  Sargent  v.  Metcalf,  5  Gray  (Mass.),  306,  Blanchard  v.  Child,  7 
Gray,  155;  Dishon  v.  Bigelow,  8  Gray,  159;  Currier  v.  Knapp,  117  Mass. 
324,  Fleeman  v.  McKean,  25  Barb.  (X.  Y.)  474;  Herring  v.  Iloppock, 
3  Duer  (X.  Y.),  20;  Ballard  v.  Burgett,  40  N.  Y.  316;  Austin  v.  Dye, 
46  N.  Y.  500;  Boon  v.  Moss,  70  N.  Y.  465;  Bennett  v.  Simms,  1  Rice  (S. 
C),  421;  Reenes  v.  Harris,  1  Bailey  (S.  C),  563;  Bradshaw  v.  Thomas, 
7  Yerg.  (Tenn.)  497;  Price  v.  Jones,  3  Head  (Tenn.),  84,  West  v.  Bol- 
ton,4Vt.  588;  Bigelow  V.  Huntley,  8  Vt.  154;  Manwell  u.  Briggs,  17  Vt. 
176;  Buckmaster  v.  Smith,  22  Vt  203;  Root  v.  Lord,  23  Vt.  568;  Arm- 
ington  V.  Houstan,  38  Vt.  448;  Goodwin  v.  May,  23  Ga.  20');  Jowens  v. 
Blandy,  58  Ga.  379,  Shireman  v.  Jackson,  14  Ind.  459;  Lester  v.  East, 
49  Ind.  588;  Bradshaw  v.  Warner,  54  Ind.  58;  Bailey  v.  Harris,  8  Iowa, 
331;  Patton  v.  McCane,  15  B.  Mon.  (Ky.)  655;  Comstock  v.  Smith,  23 
Me.  202;  Ilotchkiss  v.  Hunt,  49  Me.  219;  Dannefelser  v.  Weigel,  27  Mo. 
45;  Wanglerw.  Franklin,  70  Mo.  659;  Clayton  w.  Hester,  80  N.  C.  275; 
Logwood  y.  Hussey,  60  Ala.  417,  Forbes  v.  Marsh,  15  Conn.  384;  Sage 
V.  Sleutz,  23  Ohio  St.  1 ;  Coll  v.  Seymour,  Sabin  &  Co.,  40  Ohio  St.  670; 
Kutner  v.  Warner,  1  Wis.  141;  Dunlap  v.  Gleason,  16  Mich.  158;  Fos- 
dick  V.  Schall,  99  U.  S.  235;  Harkness  v.  Russell,  118  U.  S.  663. 

(2)  Forest  v.  Hamilton,  98  Ind.  91. 

(3)  Little  V.  Page,  44  Mo.  412;  Ridgeway  v.  Kenneday,  52  Mo.  24; 
Sumner  v.  Cotley,  71  Mo.  121;  Kenny  v.  Planer,  3  Daly  (X.  Y.),  131; 
Thompson  v.  Walker,  2  McCrary  C.  Ct.  33,  Sumner  v.  Woods,  67  Ala. 
139;  B.  c,  42  Am.  Rep.  104,  Fairbanks  v.  Eureka  Co.,  67  Ala.  109;  Mar- 
quette Mfg.  Co.  V.  Jeflfery,  49  Mich.  283;  Warner  v.  Roth,  2  Wy.  63; 
Harkness  v.  Russell,  118  U.  S.  663;  Sanders  v.  Kiber  and  Miller,  28 
Ohio  St.  630,  Simpson  v.  Shackelford.  (Ark.)  4  S.  W.  Rep.  165. 

(4)  City  Bank  v.  Tufts,  63  Tex.  113;  Tufts  v.  Cleveland,  (Tex.)  3  S. 
W.  Rep.  288. 

(5)  Sage  V.  Sleutz,  23  Ohio  St.  1. 


Conditions  Precedent  to  he  Performed  by  Vendee.         65 

(6)  Lewis  V.  McCabe,  49  Conn.  141 ;  s.  c,  44  Am.  Rep.  217. 

(7)  Blanchard  v.  Cooke,  (Mass.)  11  North-eastern  Rep.  83. 

(8)  Robbins  ,■.  Phillip.s,  68  Mo.  100. 

(9)  Keiiibockle  v.  Zugbaum,  5  Mont.  344;  .s.  c,  51  Am.  Rep.  59. 

(10)  Vaughn  v.  Hopson,  10  Bush  (Ky.),  337. 

(11)  Ford  i;.  Sproule,  2  A.  K.  Marsh.  (Ky.)  528. 

(12)  Russell  V.  Minor,  22  Wend.  (N.  Y.)  659. 

(13)  Sere  v.  McGovern,  05  Cal.  244. 

(14)  Mathews  v.  Lucia,  55  Vt.  308. 

(15)  Hill  V.  Tovvnsend,  (".9  Ala.  286. 

(16)  Gibbons  V.  Luko,  37  Hun  (N.  Y.),  576. 

(17)  Defiance  Mch.  Works  v.  Trisler,  21  Mo.  App.  69. 

(18)  United  States  v.  New  Orleans  Ry.,  12  Wall.  362. 

(19)  Budlong  V.  Cattrell,  G4  Iowa,  234. 

(20)  Carpenter  v.  Scott,  13  H.  I.  477. 

(21)  Winchester  v.  King,  46  Mich.  102. 

(22)  Flich  V.  Warner,  25  Kan.  492. 

(23)  Cushman  v.  Jewell,  14  N.  Y.  Sup.  Ct.  525. 

(24)  Appleton  v.  Norwalk  Library  Co.,  53  Conn.  4. 

(25)  Cole  V.  Berry,  42  N.  J.  L.  308;  s.  c,  36  Am.  Rep.  511. 

(26)  George  v.  Tufts,  5  Cal.  162. 

(27)  Griffith  v.  Morrison,  58  Tex.  46 

§  41.  Special  Cases.  A  number  of  cases  have  been 
decided  of  late  years  that  are  of  peculiar  interest,  be- 
cause they  apply  especially  to  the  particular  class 
of  personal  property  under  consideration.  For  ex- 
ample, in  the  case  of  the  sale  of  stock,  on  condition 
that  it  shall  remain  the  vendor's  property  until  the 
payment  of  the  price,  its  increase  accruing  before  the 
performance  of  the  condition  also  belongs  to  the  ven- 
dor, and  it  is  not  necessary  to  protect  the  title  to 
said  increase,  as  against  a  bona  fide  purchaser, 
that  it  should  be  mentioned  in  the  memorandum 
of  sale.^  And  where  a  team  of  horses  were  to  remain 
the  property  of  the  vendor  until  paid  for,  it  was 
held  that  a  purchaser  from  the  vendee,  in  good  faith 
and  without  notice  of  the  agreement,  took  sub- 
ject thereto  and  acquired  no  better  title  than  the 
original  vendee.^ 


ft6  Conditional  Sales. 

In  the  case  of  Nash  v.  Wearer,  the  sale  of  reapers 
and  mowers  was  under  consideration.  The  contract 
was  as  follows  :  "  Received  of  N.  five  mowers,  under 
bargain  for  the  sale  thereof,  and  for  which  I  have 
given  my  notes ;  said  N.  neither  parts  with,  nor  do 
I  acquire  any  title  to  said  mowers  until  said  notes 
are  fully  paid ;  and,  in  case  of  default,  N.  to  remove 
said  mowers."  This  was  held  to  constitute  a  con- 
ditional sale,  and  not  to  require  recording  as  a  chat- 
tel mortgage.^ 

The  sale  of  threshing  machines^  upon  conditions  that 
the  title,  ownership,  or  possession  of  the  machine 
should  not  pass  until  the  notes  given  for  the  purchase 
price  should  be  paid  in  full,  that  the  vendor  should 
have  power  to  declare  the  notes  so  given  due  at  any 
time  he  should  deem  the  debt  insecure,  and  to  sell 
the  machine  at  public  or  private  sale,  and  apply  the 
proceeds  upon  the  unpaid  balance  of  the  purchase 
price,  was  held  to  be  conditional.  That  no  property 
in  the  machine  passed  to  the  vendor  until  he  had 
paid  the  price,  and  that  the  right  to  sell  the  prop- 
erty, and  apply  the  proceeds  as  provided  in  the  con- 
dition, did  not  divest  the  vendor  of  his  right  of 
j^roperty  reserved  thereby.'*  These  conditions,  as  in 
the  case  of  Harkness  v.  Russell,^  were  embodied  in 
and  made  a  part  of  the  notes  given  at  the  time  of  de- 
livery. In  the  latter  case,  the  subject  of  sale  was  a 
yortahle  engine  and  saw-mill^  and  the  supreme  court 
held  that,  in  the  absence  of  fraud,  an  agreement  for 
a  conditional  sale  of  property,  accompanied  by  deliv- 
ery, is  good  and  valid,  as  well  against  third  persons 
as  against  the  parties  to  the  transaction.  A  bailee 
of  personal  property,  who  receives  it  under  an  agree- 
ment that  he  may  purchase  it  on  the  performance  of 
conditions  on  his  part,  can  not  convey  title  to  it,  or 


Conditions  Precedent  to  be  Performed  by  Vendee.         67 

subject  it  to  execution  for  his  own  debts,  until  per- 
formance of  the  conditions  on  which  the  agreement  to 
sell  is  made. 

However,  in  First  National  Bank  v.  Carson,^  the 
note  in  question  contained  a  provision,  among  others, 
to  the  effect  that,  in  case  the  property  for  which  the 
notes  were  given  should  be  removed  from  a  desig- 
nated place,  then,  and  in  that  event,  the  notes  should 
become  due  and  payable.  It  was  held  that  a  promis- 
sory note  must  be  certain  as  to  the  sum  to  be  paid 
and  the  time  of  payment.  An  instrument  intended 
as  a  promissory  note,  but  not  satisfying  the  requi- 
sites of  one,  may,  if  valid,  be  proved  as  a  contract,  and 
assigned  as  such ;  but  the  assignee  will,  in  such  case, 
succeed  to  only  such  rights  as  the  payee  had,  the 
title  so  transferred  being  only  an  equitable  one. 
Judge  Sherwood,  delivering  the  opinion  of  the  court, 
says :  "  I  do  not  think  the  contract  is  a  negotiable 
promissory  note.  A  promissory  note  must  be  cer- 
tain as  to  the  sum  to  be  paid,  and  the  time  of  pay- 
ment. It  is  made  dependent,  until  the  contract 
matures,  upon  the  fact  of  whether  the  defendant 
shall  sell  or  remove  the  property  for  which  the  con- 
tract was  made.  Such  a  degree  of  uncertainty  is  not 
allowable  in  a  promissory  note."^  It  would  therefore 
seem  that  all  notes  containing  a  provision  author- 
izing the  payee  to  declare  them  due  upon  the  hap- 
pening of  some  event,  or  the  development  of  some 
condition  of  affairs,  would  be  non-negotiable  notes ; 
and  if  assigned,  the  assignee  would  only  succeed  to 
an  equitable  title,  and  the  contract  or  note  would  be 
subject  to  all  the  equities  existing  between  the  par- 
ties thereto. 

In  a  contract  for  the  sale  of  a  safe,  payment  to  be 
made  at  a  future  day  set,  the  title  to  remain  in  the 


68  Conditional  Sales. 

vendor  until  paid  for,  the  court  held  that  the  contract 
was  not  within  the  meaning  of  the  Maine  Revised 
Statutes  (chap.  3,  ^  5),  and  that  the  safe  remained 
the  i:)roperty  of  the  vendor  until  paid  for.^ 

Sales  of  sewing  machines,  on  condition  that  the 
title  is  to  remain  in  the  vendor  until  payment  of  a 
certain  sum  in  installments,  and  in  default  of  such 
payments,  or  any  of  them,  all  sums  previously  paid 
to  be  forfeited,  and  the  machine  to  be  restored  to  the 
vendor,  have  been  sustained  and  held  to  be  valid  con- 
ditional sales,  and  the  rights  of  the  vendor  are  not 
affected  by  replevin  of  the  machines.^  This  class  of 
sales  of  sewing  machines  would  neithei  be  chattel 
mortgages  nor  bailments ;^°  and,  the  installments  not 
being  paid,  the  machine  being  voluntarily  given  up, 
the  vendee  has  no  right  of  action  against  the  vendor 
for  removing  the  same." 

Conditional  sales  of  pianos  have  been  sustained. ^^ 
But  where  a  piano  is  sold  upon  a  monthly  rental, 
title  to  remain  in  the  vendor  until  a  certain  sum  is 
paid,  and  the  vendee  fail  to  make  the  monthly  pay- 
ments, the  vendor  can  have  no  right  of  action  there- 
for ;  his  remedy  is  to  retake  the  piano  and  retain  the 
money  paid  on  it,  if  any.^^  And,  where  the  vendee  is 
allowed  to  assume  the  apparent  ownership,  the  bur- 
den of  proof  is  on  the  party  claiming  adversely,  to 
show  non-fulfillment  of  the  conditions  of  sale.^^ 

A  transaction  in  form  of  a  lease  of  an  organ  for  a 
year,  the  amount  of  rent  being  equal  to  the  value  of 
the  organ,  was,  in  Vermont,  treated  as  a  conditional 
sale ;  but,  not  being  recorded,  as  required  by  stat- 
ute, and  the  organ  being  in  the  possession  of  the 
lessee  or  vendee,  and  there  being  nothing  to  put  an 
attaching  officer  upon  inquiry,  it  may  be  attached 
as  the  property  of  such  vendee.^^    And  in  New  York, 


CoudUiuus  I^recedenl  to  be  Ptrjonned  by  I  eiidee.  69 

notwithstanding  a  written  contract,  whicli  purports 
to  bo  a  lease,  where  payment  is  made  l)y  note,  title 
passes. ^°  Pennsylvania  is  the  only  state  in  which  the 
conditional  sale  of  furniture  is  not  sustained.  And  in 
the  case  of  Stadtfield  v.  Huntsman,^'  where  the  ven- 
dee failed  to  make  any  payment,  and  sold  the  fiinii- 
ture  to  a  third  person,  who  had  no  knowledge  of 
the  agreement,  it  was  held  that  the  latter  took  a 
valid  title. 

However,  in  other  states,  this  doctrine  does  not 
prevail ;  but  even  where  the  contract  provided  that 
if  the  notes  were  not  paid  at  maturity  the  vendor 
might  retake  the  furniture,  it  has  been  held,  in  states 
recognizing  the  validity  of  conditional  sales  of  furni- 
ture, that,  notwithstanding  the  non-jmyment  of  the 
notes,  such  agreement  did  not  authorize  the  vendor 
to  enter  the  home  of  the  vendee,  in  his  absence, 
without  his  consent,  and,  without  notice,  take  the 
furniture.^^ 

(1)  Clark  V.  Hay  ward,  51  Vt.  14. 

(2)  Walker  V.  Mitchell,  25  Hun  (X.  Y.),  527. 

(3)  Nash  V.  Weaver,  23  Hun  (N.  Y.),  513 

(4)  Call  V.  Seymour,  Sabin  &  Co.,  40  Ohio  St.  670. 

(5)  Harknessv.  Russell,  118  U.  S.  06.). 

(6)  First  National  Bank  v.  Carson,  27  N.  W.  Rep.  589. 

(7)  Story  on  Bills  and  Notes,  §  20;  Bailey  on  Bills,  1 ;  Fralick  v.  Nor- 
ton, 2  Mich.  130;  Beardsley  v.  Horton,  3  Mich.  566;  Smith  v.  Kindall, 
9  Mich  243;  Bank  v.  Purdy,  22  N.  W.  Rep.  93. 

(8)  Morris  v.  Lynde,  73  Me.  88. 

(9)  Singer  Mfg.  Co.  v.  Treadvvay,  4  HI.  App.  57;  Singer  Mfg.  Co.  v. 
Cole,  4  Lea  (Tenn.),  439  ;  s.  c,  40  .^m.  Rep.  20.  See  Wheeler  &  Wilson 
Mfg.  Co.  V.  Heil,  (Penn.)  8  Atlantic  Rep.  616. 

(10)  Sumner  v.  Woods,  67  Ala.  139. 

(11)  Jinks  V.  Howe  Sewing  Mch.  Co.  34  La.  1241. 

(12)  Meager  V.  Hollenberg,  9  Lea  (Tenn.),  o92:  Redewell  v.  Gillen,  (N. 
M.)  12  P.  Rep.  872. 

(13)  Loomis  v.  Bragg,  50  Conn.  228;  s.  c,  47  Am.  Rep.  638. 

(14)  Goodell  V.  Fairbrothers,  12  R.  I.  233. 

(15)  \Vhitcomb  v.  Woodworth,  54  Vt.  544.  See  Hine  v.  Roberts,  48 
Conn.  267;  s.  c,  40  Am.  Rep.  170. 


70  Conditional  Sales. 

(16)  Hintermister  v.  Lane,  27  Hun  (N.  Y.),  497. 

(17)  Stadtaeld  v.  Huntsman,  92  Penn.  St.  53;  s.  c,  37  Am.  Rep.  6G1. 

(18)  Van  Wren  v.  Flynn,  34  La.  Ann.  1158. 

5*  42.  Railroad  Equipment.  No  more  important 
branch  of  the  law  of  conditional  sales  has  developed 
in  late  years  than  that  involving  railroad  equip- 
ments. The  first  leading  case  on  the  subject  was 
that  of  Fosdick  v.  Schall/  Mr.  Chief  Justice  Waite 
delivering  the  opinion  of  the  court.  In  that  case,  by 
the  terms  of  the  contract,  the  cars  were  to  remain 
the  property  of  the  vendor  until  paid  for,  but  settle- 
ment was  to  be  made  therefor  by  notes  of  the  rail- 
way company,  on  delivery  of  each  twenty-five  cars, 
cars  to  be  lettered  and  numbered  as  per  directions  of 
the  general  manager  of  the  railway  com  pan  v.  The 
cars  were  delivered,  the  notes  given  in  settlement 
and  part  paid,  when  the  road  and  equipment  were 
taken  possession  of  by  a  receiver,  appointed  by  the 
court,  upon  the  application  of  trustees  to  foreclose  a 
mortgage,  given  at  a  date  prior  to  that  of  the  sale 
of  the  equipment  in  question,  and  covering  the  j")rop- 
erty  the  company  then  owned  or  might  thereafter 
acquire. 

Mr.  Chief  Justice  Waite,  delivering  the  opinion  of 
the  court,  said:  "  It  is  contended  that  the  mortgage 
created  a  subsisting  and  paramount  lien  on  the  cars 
as  soon  as  they  were  put  into  the  possession  of  the 
railroad  company  under  the  contract,  and  the  reser- 
vation of  title  was  void,  under  the  laws  of  Illinois, 
because  the  contract  was  not  recorded. 

"  It  must  be  conceded,  that  contracts  like  this  are 
held  by  the  courts  of  Illinois  to  be,  in  efi*ect,  so  far  as 
the  chattel  mortgage  act  of  the  state  is  concerned, 
the  same  as  though  a  formal  bill  of  sale  had  been 
executed,  and  a  mortgage  given  back  to  secure  the 


Conditions  Precedent  to  be  Ferfomied  by  Vendee.         71 

price.  We  had  occasion  to  consider  that  question  in 
Hervy  et  al.  v.  Rhode  Ishmd  Locomotive  Works  (93 
U.  S.  664),  and  there  held,  following  the  Illinois 
decisions,  that  if  such  an  instrument  was  not  re- 
corded, in  accordance  with  the  provisions  of  the  chat- 
tel mortgage  act  (R.  S.  111.,  1874,  711,  712),  a  hen 
like  that  of  Schall  would  have  no  validity  as  against 
third  persons. 

"  Whatever  may  be  the  rule  in  other  states,  this  is 
undoubtedly  the  effect  of  the  Illinois  statute  as  con- 
strued by  the  courts  of  that  state.  In  Green  v.  Van 
Busk  irk  (5  Wall.  307),  this  court  also  held,  that 
where  personal  property  is  seized  and  sold  under  an 
attachment,  or  other  writ  issuing  from  a  court  of  the 
state  where  the  property  is,  the  question  of  the  lia- 
bility of  the  property  to  be  sold  under  the  writ  must 
be  determined  by  the  law  of  that  state,  notwithstand- 
ing the  domicile  of  all  claimants  to  the  property  may 
be  in  another  state.  Hervey  v.  Rhode  Island  Loco- 
motive Works  (supra),  Avas  also  a  case  of  seizure  and 
sale  under  judicial  process;  and  the  language  of  the 
court,  as  expressed  in  its  opinion  delivered  by  Mr. 
Justice  Davis,  is  to  be  construed  in  connection  with 
that  fact. 

"As  between  the  parties,  notwithstanding  the  Il- 
linois statute,  the  transaction  is  just  what,  on  its  face, 
it  purports  to  be,  'a  conditional  sale,  with  a  right  of 
recission  on  the  part  of  the  vendor,  in  case  the  pur- 
chaser shall  fail  in  payment  of  his  installments — a 
contract  legal  and  valid  as  between  the  parties,  but 
made  with  the  risk,  on  the  part  of  the  vendor,  of  his 
losing  his  lien,'  if  it  works  a  legal  wrong  to  third 
parties.  Murch  v.  Wright  (46  111.  488).  The  ques- 
tion then  is,  whether  these  mortgagees  occupy  the 


"t'J.  Conditional  Sales. 

position  of  third  parties  within  the  meaning  of  that 
term  as  used  in  this  statute. 

"  They  are  in  no  sense  purchasers  of  the  cars.  The 
mortgage  attaches,  if  at  all,  because  they  are  '  after- 
acquired  '  property  of  the  company ;  but  as  to  that 
class  of  property,  it  is  well  settled  that  the  lien  at- 
taches subject  to  all  the  conditions  with  which  it  is 
incumbered  when  it  comes  into  the  hands  of  the 
mortgagor.  The  mortgagees  take  just  such  an  in- 
terest in  the  property  as  the  mortgagor  acquired — no 
more,  no  less. 

"  These  cars  were  '  loose  property,  susceptible  of 
separate  ownership  and  separate  liens,'  and  'such 
liens,  if  binding  on  the  railroad  company  itself,  are 
unaffected  by  a  prior  general  mortgage  given  by  the 
the  company,  and  paramount  thereto.'  United  States 
V.  New  Orleans  Railroad,  12  Wall.  362. 

"The  title  of  the  mortgagees  of  this  case,  there- 
fore, is  subject  to  all  the  rights  of  Schall  under  his 
contract. 

"The  possession  taken  by  the  receiver  is  only  that 
of  the  court,  whose  officer  he  is,  and  adds  nothing  to 
the  previously  existing  title  of  the  mortgagees.  He 
holds,  pending  the  litigation,  for  the  benefit  of  whom- 
soever, in  the  end,  it  shall  be  found  to  concern ;  and, 
in  the  meantime,  the  court  proceeds  to  determine 
the  rights  of  the  parties,  upon  the  same  principles 
it  would  if  no  change  of  possession  had  taken  place. 

"  It  follows,  that  the  decree  ordering  a  return  of  the 
cars  to  Schall  was  right.  Whether,  if  the  property 
is  worth  more  than  is  due  upon  the  contract  of  pur- 
chase, the  mortgagees  can  obtain  the  benefit  of  the 
overplus,  is  a  question  we  are  not  called  upon  to  con- 
sider." 

In  Myer  v.  Car  Company,^  opinion  by  Mr.  Chief 


Conditions  Precedent  to  he  Performed  hy  Vendee.         73 

Justice  Wtiite,  the  railroad  company  executed  a 
mortgage  to  secure  its  bond,  which  was  duly  recorded, 
conveying  all  the  property  which  it  then  possessed, 
or  might  thereafter  acquire.  A  written  contract  was 
entered  into,  leasing,  for  a  specified  period  and  at  a 
stipulated  sum,  payable  monthly,  certain  cars.  It 
also  reserved,  but  did  not  exercise,  the  privilege  of 
purchasing  them  at  the  original  cost,  at  any  time 
during  the  existence  of  the  contract.  The  vendor  re- 
tained the  right  to  rescind  the  contract,  if  the  com- 
pany failed  to  pay  the  interest  on  its  bonds.  The 
contract  was  never  recorded,  but  while  it  was  in 
force,  the  mortgagee  filed  his  bill  of  foreclosure. 
The  court  appointed  a  receiver,  who  took  charge  of 
the  road,  and  used  the  cars  in  operating  it.  It  was 
held  that  the  contract  was  binding  between  the  par- 
ties thereto,  and  the  failure  to  record  it  did  not,  un- 
der the  statute  of  Iowa,  render  the  cars  subject  to  the 
lien  of  the  mortgage,  that  the  vendor  was  entitled 
to  possession  of  the  cars,  and  to  compensation  for 
their  use  by  the  receiver,  payable  out  of  the  fund  to 
the  credit  of  the  suit. 

The  case  of  Hervey  v.  The  Rock  Island  Locomo- 
tive Works,-  seems  to  be,  and  is,  in  apparent  conflict 
with  the  authorities  heretofore  cited;  but,  in  the 
language  of  Mr.  Justice  Bradley,  delivering  the  opin- 
ion in  Harkness  v.  Russell:^  "This  is  not  a  correct 
conclusion,  for  it  is  apparent  that  the  only  points  de- 
cided in  that  case  were : 

^^First.  That  it  was  to  be  governed  by  the  law 
of  Illinois,  the  place  where  the  property  was  situ- 
ated. 

^'Second.  That,  by  the  law  of  Illinois,  the  agree- 
ment for  continuing  the  title  of  the  property  in  the 
vendors,  after  its  delivery  to  the  vendees,  whereby  the 


74  Conditional  Sales. 

latter  became    the   ostensible   owner,    was   void   as 
against  third  persons. 

The  statute  of  Illinois,  on  the  subject  of  chattel 
mortgages,  has,  undoubtedly,  influenced  this  decision, 
as  well  as  others  rendered  by  the  supreme  court  of 
said  state.  The  statute  declares  that  "  No  mortgage, 
trust  deed,  or  other  conveyances  of  personal  prop- 
erty, having  the  effect  of  a  mortgage  or  lien  upon 
such  property,  is  valid,  as  against  the  rights  and 
interests  of  a  third  person,  unless  the  possession 
thereof  be  delivered  to  and  remain  with  the  grantee, 
or  the  instrument  provide  that  the  possession  of  the 
property  may  remain  with  the  grantor,  and  the  in- 
strument be  acknowledged  and  recorded." 

The  case  of  Heryford  v.  Davis,''  is  another  case  of 
similar  character  to  that  of  Hervey  v.  Rock  Island 
Locomotive  Works,  and,  in  the  language  of  Mr.  Jus- 
tice Bradley:  "  The  whole  question  was  as  to  the 
construction  of  the  contract.  This  was  in  the  form 
of  a  lease  ;  but  it  contained  provisions  so  irreconcil- 
able with  the  idea  of  its  being  really  a  lease,  and  so 
demonstrable  that  it  was  an  absolute  sale  with  a 
reservation  of  a  mortgage  lien,  that  the  latter  inter- 
pretation was  given  to  it  by  the  court.  This  inter- 
pretation rendered  it  obnoxious  to  the  statute  of 
Missouri  requiring  mortgages  of  personal  property 
to  be  recorded  in  order  to  be  valid  as  against  third 
persons." 

It  was  conceded  by  the  court,  in  the  opinion  de- 
livered by  Mr.  Justice  Strong,  that  if  the  agreement 
had  really  amounted  to  a  lease,  with  an  agreement 
for  a  conditional  sale,  the  claim  of  the  vendors  would 
have  been  valid.  The  first  two  or  three  sentences 
of  the  opinion  furnish  a  key  to  the  whole  effect  of 
the  decision.     Mr.  Justice  Strong  says:     "The  cor- 


Conditions  Precedent  to  he  Ferfornied  by  Vendee.         75 

rect  determination  of  this  case  depends  altogether 
upon  the  construction  that  must  be  given  to  the  con- 
tract between  the  Jackson  &  Sharp  C()mj)any  and  the 
raih'oad  company,  against  which  the  defendants  be- 
low recovered  their  judgment  and  obtained  their 
execution.  If  that  contract  was  a  mere  lease  of  the 
cars  to  the  railroad  company,  or  if  it  was  only  a  con- 
ditional sale,  which  did  not  pass  the  ownership  until 
the  condition  should  be  performed,  the  property  was 
not  subject  to  levy  and  sale  under  execution  at  the 
suit  of  the  defendant  against  the  company.  But  if, 
on  the  other  hand,  the  title  passed  by  the  contract, 
and  what  was  reserved  by  the  Jackson  &  Sharp  Com- 
pany was  a  lien  or  security  for  the  payment  of  the 
price,  or,  what  is  called,  sometimes,  a  mortgage  back 
to  the  vendors,  the  cars  were  subject  to  levy  and  sale 
as  the  property  of  the  railroad  company." 

The  whole  residue  of  the  opinion  is  occupied 
with  the  discussion  of  the  true  construction  of  the 
contract,  and,  as  we  have  stated,  the  conclusion  was 
reached  that  it  was  not  really  a  lease,  nor  a  con- 
ditional sale,  but  an  absolute  sale,  with  the  reser- 
vation of  a  lien  or  security  for  the  payment  of  the 
price. 

This  ended  the  case;  for,  thus  interpreted,  the 
instrument  inured  as  a  mortgage  in  favor  of  the  ven- 
dors, and  ought  to  have  been  recorded  in  order  to 
protect  third  persons. 

But,  in  the  case  of  Harkness  v.  Russell,  heretofore 
referred  to,  after  an  elaborate  consideration  of  all  the 
cases  on  the  subject,  the  court  announces  the  opinion 
that,  in  the  absence  of  fraud,  an  agreement  for  a  con- 
ditional sale  of  personal  property,  accompanieil  by 
delivery,  is  good  and  valid,  as  well  against  third  per- 
sons as  against  the  parties  to  the  transfer.     That  the 


76  Conditional  Sales. 

bailee  of  personal  property,  who  receives  it  under  an 
ag-reement  that  he  may  purchase  it  on  the  perform- 
ance of  conditions  on  his  part,  can  not  convey  title  to 
it,  or  subject  it  to  execution  for  his  own  debts  until 
performance  of  the  conditions  on  which  the  agree- 
ment to  sell  is  made.  However,  in  the  late  case  of 
Porter  v.  Pittsburgh  Steel  Conpany,''  Mr.  Justice 
Blatchford,  delivering  the  opinion,  says :  "  What- 
ever is  the  rule  applicable  to  locomotives  and  cars, 
and  loose  property  susceptible  of  separate  ownership 
and  of  separate  liens,  and  to  real  estate  not  used  for 
railroad  purposes,  as  to  their  being  unaffected  by  a 
prior  mortgage  given  by  a  railroad  company,  cover- 
ing after-acquired  property,  it  is  well  settled,  in  the 
decision  of  this  court,  that  rails  and  other  articles 
which  become  affixed  to  and  a  part  of  a  railroad  cov- 
ered by  a  prior  mortgage,  will  be  held  by  the  lien  of 
such  mortgage  in  favor  of  bona  fine  creditors,  as 
against  any  contract  between  the  furnisher  of  the 
property  and  the  railroad  property.'" 

In  Ohio,'*  the  subject  is  provided  for  by  statute,  re- 
quii  ing  that  no  contract  of  or  for  the  sale  of  railroad 
equipment,  rolling  stock,  or  other  personal  property 
(to  be  used  in  or  about  the  operation  of  any  railroad), 
by  the  terms  of  which  the  purchase-money,  in  whole 
or  in  part,  is  to  be  paid  in  the  future,  and  wherein  it 
is  stipulated  or  conditioned  that  the  title  to  the  prop- 
erty so  sold  shall  not  vest  in  the  vendee,  but  shall  re- 
main in  the  vendor  until  the  purchase-money  shall 
have  been  fully  paid,  shall  be  valid  against  creditors 
or  innocent  purchasers  for  value,  unless  recorded  in 
the  office  of  the  secretary  of  state,  or  a  copy  thereof 
be  filed  in  the  office  of  said  secretary  of  state,  and 
when  said  contract  is  so  recorded,  or  a  copy  thereof 
so  filed  as  aforesaid,  the  title  to  the  property  so  sold, 


Conditions  Precedent  to  lie  Performed  by  Vendee.         77 

or  contracted  to  be  sold,  shall  not  vest  in  the  vendee, 
but  shall  remain  in  the  vendor  until  the  purchase- 
money  shall  have  been  fully  paid,  and  such  stipula- 
tion or  condition  shall  be  and  remain  valid,  notwith- 
standing the  delivery  of  the  property  to  and  its 
possession  by  such  vendee. 

It  also  provided,  that  in  any  written  contract  for 
the  renting,  leasing,  or  hiring  of  such  property,  it 
shall  be  lawful  to  stipulate  or  provide  for  a  condi- 
tional sale  of  such  property  at  the  termination  of 
such  renting,  leasing,  or  hiring,  and  to  stipulate  or 
provide  that  the  rental  reserved  shall,  as  paid,  or 
when  paid  in  full,  be  applied  to  and  treated  as  pur- 
chase-money; and,  in  such  contract,  it  shall  be  lawful 
to  stipulate  or  provide  that  the  title  to  such  prop- 
erty shall  remain  in  the  lessor  or  vendor  until  the 
purchase-money  shall  have  been  fully  paid,  notwith- 
standing delivery  to  and  possession  by  the  other 
party ;  subject,  however,  to  the  requirement  as  to  re- 
cording or  filing,  contained  in  the  foregoing  section 
of  the  act. 

(1)  Fosdick  V.  Schall,  99  U.  S.  235. 

(2)  Hervey  v.  Rock  Island  Locomotive  Works,  93  U.  S.  664. 

(3)  Harknessv.  Russell,  118  U.  S.  679. 

(4)  Heryford  v.  Davis,  102  U.  S.  235. 

(5)  Meyer  v.  Car  Company,  102  U.  S.  1. 

(6)  Porter  v.  Pittsburgh  Steel  Co.,  122  U.  S.  267. 

(7)  Dunham  v.  Railway  Co.,  1  Wall.  254;  Galveston  Railroad  v.  Cow- 
drey,  11  Wall.  459,  480,  482;  United  States  v.  New  Orleans  Railroad,  12 
Wall.  362,  365;  Dillon  v.  Barnard,  21  Wall.  430,  440;  Fosdick  v.  Schall, 
99  U.  S.  235,  251. 

(8)  1882  Laws  of  Ohio,  Vol.  79,  p.  45. 

§  43.  Statutory  Requirements.  So  rapid  has  been 
the  development  of  the  law  of  conditional  sales,  as 
announced  by  the  courts,  that  legislatures  have,  in 
many  states,  sought  to  throw  around  such  sales  some 
statutory  limitations  or  requirements.     These   stat- 


78  Conditional  Sales. 

utes  can  only  apply  to  such  contracts  of  sale  as  con- 
tain an  express  condition,  and  can  not,  from  the 
very  nature  of  mercantile  transactions,  apply  to  such 
contracts  as  have  been  held  by  courts  to  be  im- 
pliedly conditional.  For  example,  a  merchant  in 
Xew  York  sells,  to  a  merchant  residing  in  Ohio,  a 
bill  of  goods,  terms,  "net"  cash."  The  law  says  it  is 
a  condition  precedent,  that  the  cash  must  be  paid 
before  title  vests  in  the  vendee. 

Would  it  be  contended  for  a  moment  that,  in  such 
sales,  to  be  valid  as  against  third  persons,  the  con- 
tract, or  a  copy  thereof,  must,  in  compliance  with  the 
statute  of  Ohio,  be  duly  authenticated  by  the  vendor, 
and  filed  with  a  township  clerk  or  the  recorder  at  the 
resident  city  of  the  vendee  ?  We  think  not,  for  the 
reason  that  it  would  greatly  interfere  with  our  com- 
mercial relations,  would  therefore  be  against  public 
policy,  and  would  be  an  unwarranted  interference 
with  interstate  commerce.^ 

In  many  states,  all  conditional  sales  or  leases, 
where  the  title  is  to  depend  upon  any  condition, 
must,  to  be  valid  as  against  third  parties,  be  filed  or 
recorded  like  mortgages  of  chattels."  In  each  in- 
stance the  recording  or  filing  of  the  terms  of  the  sale 
must  be  in  the  town  or  township  where  the  vendee 
resides,  except  in  the  states  of  New  Hampshire,  Ver- 
mont, and  Nebraska,  where,  if  the  vendee  is  not  a 
resident  of  the  state,  the  filing  or  recording  may  be 
done  where  the  vendor  resides.  In  Vermont,  such 
record  must  be  made  within  thirty  days  of  the  sale, 
while  in  New  Hampshire,  the  time  is  shortened  to  ten 
days.  The  eifect  of  record  will  not  extend  beyond 
one  year  in  Wisconsin  and  five  years  in  Nebraska, 
unless  it  is  renewed  from  time  to  time. 

But,  in  other  states,^  the  conditional  sale  seems  to 


Conditions  Precedent  to  be  Performed  hy  Vendee.         79 

be  good ;  only  a  note  <  r  other  evidence  of  indebted- 
ness given  therefor  b}'  the  vendee  is  void  as  against 
the  vendee's  creditors  and  subsequent  purchasers  or 
mortgagees,  unless  such  note  or  contract  be  recorded 
with  the  township  clerk  where  the  vendee  resides. 
In  New  York  and  Minnesota,  such  record  ceases  to 
be  notice  after  one  year  from  the  time  the  note  or 
other  evidence  of  indebtedness  becomes  due.  How- 
ever, in  Xew  York,  these  provisions  do  not  apply  to 
sales  of  household  goods,  pianos,  engines,  and  ma- 
chinery, if  the  contract  of  sale  be  executed  in  dupli- 
cate and  one  of  the  duplicates  delivered  to  the  vendee. 
In  New  Hampshire,  it  is  further  required  that  an  affi- 
davit of  good  faith,  signed  by  both  parties,  should  be 
appended  to  and  recorded  with  the  note  or  contract. 
As  to  foreclosures,  the  legislators  have  but  in  few 
states  prescribed  the  mode  of  procedure.  In  New  York 
and  Vermont,  the  vendor  may  retake  the  property 
thirty  days  after  condition  broken.  But  in  Maine,  the 
property  is  subject  to  redemption  by  the  vendee,  un- 
less otherwise  stipulated  in  the  contract.  It  is  by  stat- 
ute, in  Missouri  and  Ohio,  made  unlawful  for  the 
vendor  or  lessor  to  take  possession  or  seize  the  prop- 
erty without  refunding  the  sums  actually  paid  by  the 
lessee,  less  a  reasonable  compensation  for  use,  in  no 
case  exceeding  twenty-five  per  cent  in  the  former  state, 
and  fifty  per  cent  in  the  latter,  of  such  sums  paid, 
and  for  actual  breakage  or  damage.  In  neither  state 
have  the  courts  of  last  resort  given  any  interpreta- 
tion to  these  very  peculiar  statutes.  We  are,  how- 
ever, constrained  to  think  that  they  can  only  apply 
to  cases  where  the  vendor  seeks  to  take  possession 
without  the  intervention  of  the  law.  Surely,  they  can 
not,  and  do  not,  abridge  or  destroy  any  of  the  reme- 
dial rights  which  the  vendor  might  have  in  an  action 


80  Conditional  Sales. 

on  a  contract ;  and,  in  an  action  for  foreclosure,  an 
officer  of  the  court  could  take  possession  of  the  prop- 
erty and  sell  the  same  at  public  sale,  without  tender- 
ing to  the  vendee  a  portion  of  what  he  might  have 
previously  paid  to  the  vendor ;  but,  as  in  the  sale  of 
property  covered  by  chattel  mortgage,  the  vendor 
could  ask  nothing  more  than  the  satisfaction  of  the 
amount  actually  due  him. 

A  consignment  of  merchandise  by  a  manufac- 
turer to  a  merchant,  to  be  sold  on  consignment,^  and 
sales  to  an  agent  or  sub-agent  of  the  vendor,^  have 
been  held  not  to  be  such  sales  as  come  within  the 
statutes. 

(1)  Brown  v.  Maryland,  12  Wheat.  436;  Welton  w.  Missouri,  91  U.  S. 
275;  Mobile  v.  Kimball,  102  U.  S.  691 ;  Robbins  v.  Shelby  County  Tax- 
ing District,  120  U.  S.  489. 

(2)  New  York,  1884,  315,  1-2,  and  1886,  495;  Iowa,  g  1922;  Missouri, 
§  2505;  California,  §  169;  South  Carolina,  §  2022;  New  Hampshire, 
1885,30;  Vermont,  §  1992;  Nebraska,  1 ,  32,  26 ;  North  Carolina,  §  1275; 
Ohio,  1885,  p.  238;  Wisconsin,  §  2317;  West  Virginia,  96,  3;  Texas, 
1885,  78;  Georgia,  1955;  Alabama,  §  1815. 

(3)  Minnesota,  39,  15,6;  1883,  38,  2;  1885,  76;  New  York,  ib.  3; 
New  Hampshire,  1885,  30,  2. 

(4)  Peet  V.  Spencer  (Mo.),  2  S.  W.  Rep.  434. 

(5)  South  Bend  Iron  Works  v.  Cottrell,  31  Fed.  Rep.  254. 


Conditions  Subsequent.  81 


CHAPTER  V. 

CONDITIONS   SUBSEQUENT. 

Article  10. — Express  Conditions. 

§  44.  Sale  or  Return. 

§  45.  Sale  of  Goods  to  Arrive. 

^  44.  Sale  or  Return.  The  bargain  called  "  sale  or 
return,"  was  explained  by  the  queen's  bench  in  Mass 
V.  Sweet/  to  mean  a  sale  with  a  right  on  the  part  of 
the  vendee  to  return  the  goods  at  his  option,  within  a 
a  reasonable  time  ;  and  it  was  held,  in  that  case,  that 
the  property  passes,  and  an  action  for  goods  sold  and 
delivered  will  lie  if  the  goods  are  not  returned  to  the 
vendor  within  a  reasonable  time.^  And  such  is  the 
holding  of  our  courts.'^  What  is  a  reasonable  time, 
however,  in  the  absence  of  any  contract  provision 
therefor,  is  a  question  of  law  for  the  court,  to  be  de- 
termined by  a  view  of  all  the  circumstances  of  the 
particular  case.''  And  it  has  been  held  that  parol 
evidence  of  the  conversations  of  the  parties  is  ad- 
missible to  show  the  circumstances  under  which  the 
contract  was  made,  and  what  the  parties  thought  a 
reasonable  time.^ 

Whether  the  vendee  has  terminated  the  sale,  by 
the  exercise  of  his  privilege  of  returning  the  goods, 
is  a  question  of  fact,  likewise  to  be  determined  by  a 
view  of  all  the  circumstances  of  the  particular  case.*^ 
As  in  the  case  of  Hall  v.  Minn  Mfg.  Co.,"  where  the 
vendor  refused  to  receive  back  a  machine  which 
failed  to  work  as  represented,  and  the  vendee  took  it 
home,  but  notified  the  vendor  to  take  it  away,  the 
sale  was  held  to  have  been  terminated. 
6 


82  Conditional  Sales. 

''  If  the  vendee  materially  impair  the  condition  of 
the  chattel,  by  misuse  or  otherwise,  while  it  is  in  his 
keeping,  and  is  thus  unable  to  place  the  seller  in 
statu  quo,  he  can  not,  in  general,  take  adv'antage  of 
the  condition  under  which  it  was  delivered  so  as  to 
rescind  the  contract;**  but  for  an  injury  occasioned 
without  the  vendee's  fault,  as  in  the  case  of  an  ani- 
mal taken  under  a  bargain  '  of  sale  and  return,'  the 
buyer  has  sometimes  been  held  not  to  lose  his  privi- 
lege of  return."^ 

(1)  Moss  V.  Sweet,  16  Q.  B.  493. 

(2)  Benjamin  on  Sales,  §  597. 

(3)  Dearbornv.  Turner,16Me.  17;  Buswellu.  Bicknell,  17  Me.  344;  Per- 
kins V.  Douglass,  20  Me.  317;  Walkerv.  Blake,  37  Me.  373,  375;  Crocker 
V.  Gullifer,44  Me.  491,493;  Schlesinger  v.  Stratton,  9  R.  I.  578;  BufiFum 
V.  Merry,  3  Mason,  478;  Ray  v.  Thompson,  12  Cush.  281;  Jameson  v. 
Gregory,  4  Met.  (Ky.)  363;  Chamberlain  v.  Sleeper,  101  Mass.  138; 
Sargent  v.  Gile,  8  N.  H.  325,  328;  Porter  v.  Pettengill,  12  N.  300, 
301  ;  Hurd  v.  West,  7  Cowen,  752;  Washington  v.  Johnson,  7  Humph. 
468;  Johnson  v.  McLane,  7  Blackf.  501 ;  Moore  v.  Purcy,  1  Jones  (Law), 
N.  C.  131;  Wolf  u.  Dietzsch,  75  111.  205;  Haa.se  v.  Nonemacher,  21  Minn. 
486 ;  Cahen  v.  Piatt,  40  N.  Y.  Sup.  Ct.  483. 

(4)  Attwood  V.  Clark,  2  Greenl.  249;  Hill  v.  Hobart,  16  Me.  164;  Mur- 
ray V.  Smith,  1  Hawks,  41. 

(5)  Crocker  v.  Franklin  Hemp  and  Flax  Mfg.  Co.,  3  Sumner,  530. 

(6)  Gammon  v.  Abrams,  53  Wis.  323. 

(7)  Hall  V.  JEinsi  Mfg.  Co.,  30  Iowa,  215;  Padden  v.  Marsh,  34  Iowa, 
522. 

(8)  Ray  v.  Thompson,  12  Cush.  281;  59  Am  Dec.  187;  20  Am.  Law 
Reg.,  N.  S.  245. 

(9)  Newmark  on  Sales,  §  310;   Benjamin  on  Sales,  §g  599,  599a. 

§  45.  Sale  of  Goods  to  Arrive.  There  has  been 
much  discussion  as  to  whether  a  sale  of  goods  to  ar- 
rive partook  of  the  nature  of  an  executed  sale,  sub- 
ject to  be  defeated  by  the  non-arrival  of  the  goods, 
or  of  an  executory  contract  to  sell  and  buy.  We  are 
of  the  opinion,  that  it  can  be  either — determinable  in 
each  case  by  the  form  of  the  contract. 

The  English  decisions  do  not  clearly  settle  when 


Conditions  Sul>sequenL  83 

the  language  used  in  such  contracts  shall  amount  to 
a  condition  precedent,  nor  even  then  what  the  condi- 
tion shall  be.'  The  leading  case  on  this  subject  is 
one  in  which  Judge  Blackburn  -  delivered  the  opin- 
ion, and  it  may  be  accepted  as  authority  in  our 
American  courts.     He  says : 

"  There  is  no  rule  of  law  to  prevent  the  parties  in 
cases  like  the  present  from  making  whatever  bargain 
they  please.  If  they  use  words  in  the  contract  show- 
ing that  they  intend  that  the  goods  shall  be  shipped 
by  the  person  who  is  to  supply  them,  on  the  terms 
that  when  shipped  they  shall  be  the  consignee's  prop- 
erty and  at  his  risk,  so  that  the  vendor  shall  be  paid 
for  them  whether  delivered  at  the  port  of  destination 
or  not,  this  intention  is  effectual.  Such  is  the  com- 
mon case  where  goods  are  ordered  to  be  sent  by  a 
carrier  to  a  port  of  destination.  The  vendor's  duty 
is,  in  such  cases,  at  an  end  when  he  has  delivered 
the  goods  to  the  carrier ;  and,  if  the  goods  perish  in 
the  carrier's  hands,  the  vendor  is  discharged,  and  the 
purchaser  is  bound  to  pay  him  the  price.  If  the  par- 
ties intend  that  the  vendor  shall  not  merely  deliver 
the  goods,  but  also  unde^-take  that  they  shall  actually 
be  delivered  at  their  destination,  and  express  such 
intention,  this  also  is  effectual.  In  such  a  case,  if 
the  goods  perish  in  the  hands  of  the  carrier,  the  ven- 
dor is  not  only  not  entitled  to  the  price,  but  he  is  liable 
for  whatever  damage  may  have  been  sustained  by 
the  purchaser  in  consequence  of  the  breach  of  the 
vendor's  contract  to  deliver  at  the  place  of  destina- 
tion. 

"  But  the  parties  may  intend  an  intermediate  state 
of  things ;  they  may  intend  that  the  vendor  shall  de- 
liver the  goods  to  the  carrier,  and  that  when  he  has 
done  so  he  shall  have  fulfilled  his  undertaking,  so 


84  .    Conditional  Sales. 

that  Jie  shall  not  be  liable  in  damages  for  a  breach 
of  contract,  if  the  goods  do  not  reach  their  destina- 
tion, and  yet  they  may  intend  that  the  whole  or  part 
of  the  price  shall  not  be  payable  unless  the  goods  do 
arrive.  They  may  bargain  that  the  property  shall 
vest  in  the  purchaser  as  owner  as  soon  as  the  goods 
are  shipped,  that  then  they  shall  be  both  sold  and 
delivered,  and  yet  that  the  price  (in  whole  or  in  part) 
shall  be  payable  only  on  the  contingency  of  the  goods 
arriving ;  just  as  they  might,  if  they  pleased,  con- 
tract that  the  price  should  not  be  payable  unless  a 
particular  tree  fall,  but  without  any  contract  on  the 
vendor's  part,  in  the  one  case,  to  procure  the  goods 
to  arrive,  or  in  the  other,  cause  the  tree  to  fall." 

Where,  therefore,  the  quantity,  quality  and  price  of 
the  goods  are  specifically  ascertained,  and  the  bill  of 
lading  thereof  is  assigned  by  indorsement  and  delivery 
to  the  purchaser,  we  think  that  the  general  prin- 
ciples of  the  law  merchant  would  lead  to  the  conclu- 
sion that  there  was  a  constructive  delivery  and 
executed  sale,  and  that  the  right  of  property  passed.^ 
It  has  been  held,  that  if  any  other  act  of  equivalent 
import  to  the  assignment  of  a  bill  of  lading  be  per- 
formed, as  an  assignment  upon  the  back  of  the  in- 
voice, the  transfer  of  a  policy  of  insurance  upon  the 
goods,  and  the  giving  an  order  on  the  vessel  to  de- 
liver to  the  vendee  on  arrival,  the  effect  might  be 
the  same.'* 

But  the  tendency  of  the  American  cases  is  to  re- 
gard contracts  for  the  sale  of  goods  to  arrive,  in  the 
absence  of  acts  or  words  to  the  contrary,  as  condi- 
tional and  executory,  title  not  passing  until  the  actual 
arrival  of  the  goods.^ 

(1)  Benjamin  on  Sales,  §  578-585;  Blackburn  on  Sales,  230-239. 

(2)  Calcutta  &  Burmah  Steam  Nav.  Co.  v.  De  Motts,  32  L.  J.  Q.  B.  328. 


Conditions  Subsequent.  85 

(3)  Parsons  on  Contracts,  p.  553,  citing  Caldwell  v.  Ball,  1  T.  R.  205 ; 
Stubbs  V.  Lund,  7  Mass.  453;  Walter  v.  Koss,  2  Wash.  C.  C.  283;  Jordan 
V.  James,  5  Ilam.  (Ohio)  89,  Lee  v.  Kimball,  4.0  Me.  172. 

(4)  Gardner  V.  llowland,  2  Pick.  590;  Rowland  v.  Harris,  4  Mason, 
497;  Pratt  V.  Parkman,  24  Pick.  42;  Lanfear  v.  Sumiior,  17  Mass.  110. 

(5)  Benedict  v.  Field,  16  X.  Y.  595 ;  Neldon  v.  Smith,  7  Vroom,  148; 
Rodgers  v.  Woodruff,  23  Ohio  St.  632;  s.  c,  13  Am.  Rep.  276;  Dike  v. 
Reitlinger,  23  Hun,  241. 

Article  11. — Implied  Conditions. 
§  46.  Shall  be  Manufacturer's  own  Make. 

§  46.  Shall  be  Manufacturer's  own  Make.  Mr.  Benja- 
min, in  his  learned  work  on  Sales,  says:^  "A  reference 
should  be  made  here  to  the  important  decision  in 
Johnson  v.  Raylton,-  where  the  majority  of  the  court 
of  appeal  held,  in  opposition  to  two  decisions  of  the 
court  of  session,  in  Scotland,^  that,  on  the  sale  of 
goods  by  a  manufacturer  of  such  goods,  who  is  not 
otherwise  a  dealer  in  them,  there  is  (in  absence  of 
any  usage  in  the  particular  trade,  or,  as  regards  the 
particular  goods,  to  supply  goods  of  other  makers) 
an  implied  condition  that  the  goods  shall  be  those 
of  the  manufacturer's  own  make,  and  the  purchaser 
is  entitled  to  reject  others,  although  they  are  of  the 
quality  contracted  for." 

(1)  Benjamin  on  Sales,  §  609. 

(2)  Johnson  v.  Raylton,  7  Q.  B.  D.  438,  C.  A. 

(3)  West  Stockton  Iron  Co.  v.  Nielson,  17  Sc.  L.  R.  719;  7  Court  Sess. 
Cas.  (4th  ser.)  1055;  Johnson  v.  Nicoll,  18  Sc.  L.  R.  268;  8  Court  Sess. 
Cas.  (4th  ser.)  437. 


86  Conditional  Sales. 


CHAPTER  VI. 

INCIDENTS— WARRANTIES. 

Article  12. — Implied  Warranties. 

§  47.  Implied  Warranty. 

§  48.  Warranty  of  Title. 

§  49.  Warranty  of  Quality. 

§  50.  Sale  by  Sample. 

§  51.  Sale  by  Description, 

§  52.  Sale  for  Special  Purpose. 

§  53.  Merchantable  Character. 

§  54.  Soundness. 

^  47.  Implied  Warranty.  A  warranty  in  a  sale  of 
goods  is  not  one  of  the  essential  elements  of  the  con- 
tract, for  a  sale  is  none  the  less  complete  and  per- 
fect in  the  absence  of  a  warranty  ;  but  it  is  a  collateral 
undertaking — a  mere  incident/  forming  part  of  the 
contract  by  the  agreement  of  the  parties,  express  or 
implied.^  For,  as  they  are  of  two  kinds,  in  respect  to 
their  subject-matter,  warranty  of  title  and  warranty 
of  quality,  they  are  also  of  two  kinds  in  respect  to 
their  form,  as  they  may  be  expressed  or  implied.^ 

A  mere  contract  of  sale,  or  agreement  to  sell,  does 
not  imply  a  warranty,^  and  a  warranty  is  not  always 
inferrable  from  the  price  paid,^  the  element  of  intent 
being  necessary  to  constitute  a  warranty.^  It  is  only 
where  there  is  no  express  warranty,  that  resort  to  an 
implied  warranty  can  be  had.''  However,  the  taking 
of  a  written  memorandum  containing  express  war- 
ranties upon  some  points,  does  not  thereby  preclude 
the  vendee  from  relying  upon  the  warranty  otherwise 
implied  by  law.^  If  the  vendor  refuses  to  warrnnt, 
there  can  be  no  pretense  of  raising  an  implied  war- 


IncidcntH —  Warranties.  87 

ranty ;  but  what  amounts  to  a  refusal  to  warrant 
must,  in  general,  be  submitted  to  a  jury.^  It  has  also 
been  held,  that  evidence  of  usaire  is  inadmissible  to 
affect  an  implied  warranty.'" 

The  doctrine  of  implied  warranties  applies  as  well 
to  property  exchanged  as  to  property  sold,^^  and  a 
warranty  may  even  arise  in  case  of  an  executory  con- 
tract, where  the  defect  in  the  property  is  incapable 
of  discovery  at  the  time  of  delivery.  In  such  cases, 
the  vendee  may  retain  the  property,  and  sue  upon 
the  warranty ;  but  if  the  defect  is  openly  visible  and 
notorious  at  the  time  of  delivery,  the  vendee  is  bound 
to  reject  the  articles,  and  refuse  to  receive  them  as  a 
compliance  with  the  contract,  or  he  will  waive  his 
right  to  damages.^'-  For  a  warranty  will  not  be  im- 
plied to  cover  defects  that  are  visible.'" 

In  the  absence  of  express  warranty,  when  the  ven- 
dee has  an  opportunity  to  inspect,  and  the  vendor  is 
guilty  of  no  fraud,  and  is  not  the  manufacturer  of  the 
article  he  sells,  the  maxim  of  "caveat  emptor"  ap- 
plies, and  there  can  be  no  implied  warranty.'^  But 
the  rule  of  "  caveat  emptor  "  does  not  apply  to  sales 
of  drugs. ■''^ 

(1)  Osborn  r.  Grats,  60  N.  Y.  540;  Hopkins  v.  Tanqueray,  15  C.  B. 
139. 

(2)  Benjamin  on  Sales,  g  610;  Canter  v.  Hopkins,  4  M.  &  W.  (Eng). 
399  ;  Foster  v.  Smith,  18  C.  B.  (Eng.)  156. 

(3)  Parsons  on  Contracts,  573. 

(4)  Harley  v.  Golden  State  Works,  66  Cal.  238. 

(5)  King  V.  Quidnick  Co.,  14  R.  1.  131. 

(6)  Figge  V.  Hill,  61  Iowa,  430. 

(7)  Johnson  V.  Latimer,  71  Ga  470. 

(8)  Boothby  v.  Scales,  27  Wis.  626. 

(9)  Rodrigine.s  v.  Habershaw,  1  Spears  (S.  C),  314;  Smith  v.  Bank  of 
the  State,  Riley  (S.  C),  113. 

(10)  Thompson  v.  Ashton,  14  Johns.  316;  Dickinson  v.  Gay,  7  Al- 
len, 29. 

(11)  Rivers  v.  Grugett,  1  McCord  (S.  C),  100. 


88  Conditional  Sales. 

(12)  Brown  v.  Burhans,  4  Hun  (N.  Y.),  227. 

(13)  Schuyler  v.  Ross,  2  Caines  (N.  Y.),  202;  Jordan  v.  Foster,  1] 
Ark.  139;  Birdseye  u.  Frost,  34  Barb.  (N.  Y.)  367;  Hudgins  v.  Perry,  7 
Ired.  (N.  C.)  L.  102;  Long  v.  Hicks,  2  Humph.  (Tenn.)  30o ;  Williams 
V.  Ingram,  21  Tex.  300;    Hill  v.  North,  34  Vt.  604. 

(14)  Lindley  v.  Hunt,  22  Fed.  Rep.  52;  Kohl  v.  Lindley.  39  111.  195; 
S.  P.  Humphreys  v.  Comline,  8  Blackf.  (Ind.)  508;  McGuire  v.  Kear. 
ney,  17  La.  Ann. -295;  Deming  v.  Foster,  42  N.  II.  165;  Moses  v  Mead, 
1  Denio  (N.  Y.),  378. 

(15)  Jones  v.  George,  56  Tex.  149;  s.  c,  42  Am.  Rep.  689. 

^  48.  Warranty  of  Title.  The  generally  accepted 
doctrine  in  this  country  is,  that  if  one  in  possession 
of  property  sells  it  as  his  own,  he  warrants  the  title, 
unless  the  facts  and  circumstances  of  the  case  show 
that  he  did  not  intend  to  assert  his  ownership  of  it, 
but  only  to  transfer  his  interest  in  the  property.^ 
Some  courts  even  hold  that  the  possession  of  a  ven- 
dor of  chattels  is  equivalent  to  an  affirmation  of  title, 
and  a  warranty  of  title  is  implied,  though  not  men- 
tioned.- Others  have  held  that  a  warranty  of  title  is 
always  implied  in  the  sale  of  a  chattel  in  the  posses- 
sion of  the  vendor,'^  even  though  nothing  whatever  is 
said  about  the  title.^ 

Wherever  there  is  a  sale  or  exchange,  or  a  giving 
in  payment  of  property,  unless  waived  by  the  con- 
tract, there  is  an  implied  warranty  that  the  person  so 
selling  or  exchanging,  or  giving  in  payment,  is  the 
owner  of  the  thing  sold,  exchanged,  or  given.  The 
same  rule  prevails  in  case  of  a  settlement  between 
debtor  and  creditor,  where  property  wholly  outside 
of  the  difference  between  the  parties  is  given  in  pay. 
ment.^ 

However,  in  every  sale  of  chattels,  if  the  posses 
sion  at  the  time  be  in  another,  and  there  be  no  cove- 
nant  of  title,  the  rule  of  caveat  emptor  applies,  and 
the  vendee  buys  at  his  peril.'^    But  if  the  vendor  has 
possession  of  the  article.,  and  sells  it  as  his  own,  and 


Incidents —  Warranties.  89 

not  as  the  agent  of  another,  and  for  a  fair  price,  he  is 
understood  to  warrant  the  title."  Constructive  pos- 
session is  sufficient.  It  is  only  necessary  that  the 
vendor  have  an  adverse  possession,  and  it  is  not  es- 
sential that  he  have  the  immediate  physical  control 
of  the  property  at  the  time  of  the  sale.^  But  the 
implied  warranty  of  title  is  broken  if  the  vendor 
have  neither  title  nor  possession  at  the  time  of  sale. ^ 

If,  however,  the  subject  of  sale  is  merely  the  ven- 
dor's title,  and  not  the  thing  itself,  there  is  no  im- 
plied warranty  of  title.  Therefore,  if,  after  such  a 
sale,  the  vendor  acquire  the  full  title,  it  will  inure  to 
the  benefit  of  the  vendee.^° 

But  where  the  subject  of  sale  is  the  exclusive 
right  to  manufacture  an  article,  there  is  a  warranty 
of  title,^^  for  without  title  the  grant  would  be  of  no 
avail 

Warranty  of  title  to  a  chattel  can  not  be  implied 
or  proved  where  there  is  a  written  bill  of  sale,  which 
contains  no  warranty  ;  for  that  would  be  to  add  to  the 
writing  by  parol.^'-  Where  a  vendee  buys  of  a  known 
agent,  there  is  no  warranty  of  title  upon  which  recov- 
ery can  be  had  against  the  principal. ^^  Nor  will  a 
warranty  of  title  be  implied  in  a  sale  by  an  adminis- 
trator, executor,  or  by  a  sheriff  or  other  officer  of  the 
law.^'  For  on  execution  sales  there  is  neither  an  ex- 
press nor  implied  warranty  of  title  or  soundness  of 
the  goods  sold.^^ 

(1)  Butler  V.  Tufts,  13  Me.  302;  Huntington  v.  Flail,  ?S  Me.  501; 
Thurston  v.  Spratt,  52  Me.  202;  Bennett  v.  Bartleti,  6  Cush.  22-') ;  Emer- 
Bon  v.  Brigham,  10  Mass.  202;  Bucknam  v.  Goddard,  20  Pick.  (Mass.) 
71 ;  Sargent  v.  Currier,  49  X.  H.  310;  Burt  v.  Dewey,  40  N.  Y.  483;  Mc- 
Night  V.  Devlin,  52  N.  Y.  399  ;  Darst  v.  Brockway,  1 1  Ohio,  442;  Lines  v. 
Smith,  4  Fla.  47;  Chancellor  v.  Wiggins,  4  B.  Mon.  201  ;  Williamson  r. 
Summons,  34  Ala.  691  ;  Storm  v.  Smith,  43  Miss.  407;  Morris  v.  Thomp- 
son, 85  111.  16;  Tutle  v.  White,  40  Mich.  299;  Marshall  v.  Duke,  51  Ind. 
62;  Huckleman  v.  Harrison,  50  Ind.  156;  Rice  v.  Forsyth,  41  Md.  389; 


90  Conditional  Sales. 

Whitaker  v.  Eastwick,  7)  Penn  St.  229;    People's  Bank  v.  Kurtz,  99 
Penn.  344. 

(2)  Byrnside  v.  Burdett,  15  W.  Va.  702. 

(3)  Williamson  v.  Sammons,  34  Ala.  691  ;  Dicks  v.  Dillahunty,  8  Port. 
(Ala.)  133;  Linton  v.  Porter,  31  111.  107;  Chancellors.  Wiggins,  4  B.  Mon. 
(Ky.)201;  Trigg  v.  Farris,  5  Humph.  (Tenn.)  343;  Charlton  v.  Hay,  5 
Humph.  496;  Goodkin  v.  Graham,  5  Humph.  480;  Word  v.  Gavin,  1 
Head  (Tenn.),  ")Ot'i;  Davis  v.  Smith,  7  ^linn.  414;  Robinson  v.  Rice,  20 
Mo.  229. 

(4)  Gross  V.  Kurski,  41  Cal.  111. 

(5)  Gay  lor  v.  Copes,  16  Fed.  Rep.  49. 

(6)  Huntington  v.  Hall,  36  Me.  501  ;  Pratt  i-.  Philbrook,  32  Me.  23; 
McCoy  V.  Artcher,  3  Barb.  (N.  Y.)  323;  Edick  v.  Crim,  10  Barb.  445; 
Scranton  v.  Clark,  39  N.  Y.  220;  Emmerson  v.  Brigham,  10  Mass.  202; 
Fletcher  v.  Darth,  66  Mo.  126 ;  Long  v.  Hickingbottom,  28  Miss.  772; 
Storm  V.  Smith,  43  Miss.  497;  Barton  v.  Flaherty,  3  G.  Greene  (Iowa), 
327;  s.  c,  54  Am.  Dec.  503;  Lackey  v,  Stonder,  2  Ind.  376;  Scott  v.  Hix, 
2  Sneed  (Tenn.),  192. 

(7)  2  Kent's  Commentaries,  478. 

(8)  Whitney  v.  Harwood,  6  Cush.  (Mass.)  82;  Shattuck  v.  Green,  104 
Mass.  42;  Palte  v.  Pelton,  48  Vt.  182;  Byrnside  v.  Burdett,  15  W.  Va. 
702;    Huntv.  Sackett,  31  Mich.  18. 

(9)  Tipton  V.  Triplett,  1  Met.  (Ky.)  570. 

(10)  Sherman  v.  Champlain  Trans.  Co.,  31  Vt.  162. 

(11)  Costigan  v.  Hawkins,  22  Wis.  74. 

(12)  Sparks  v.  Missick,  65  N.  C.  440.  Contrary,  Miller  v.  Van  Tassil, 
24  Cal.  450. 

(13)  Irwin  v.  Thompson,  27  Kan.  643. 

(14)  Mockbee  v.  Gardner,  2  H.  &  G.  (Md.)  176;  Brigham  v.  Maxey, 
15  111.  295;  Blood  v.  French,  9  Gray  (Mass.),  197;  Worthy  v.  Johnson, 
8  Ga.  236;  Ilarsby  u.  Baker,  10  Mo.  157;  Hicks  v.  Skinner,  71  N.  C. 
539;  Fore  v.  McKenzie,  58  Ala.  115;  Harrison  v.  Shanks,  13  Bush  (Ky.), 
620;  Savings  Association  v.  O'Connor,  29  Ohio  St.  654;  Baker  v.  Arnot, 
67  N.  Y.  448. 

(15)  Hinsley  v.  Baker,  10  Mo.  157. 

J  49.  Quality.  The  general  rule  is,  that  on  a  fair 
sale  of  [)ersonal  property  there  is  no  implied  war- 
ranty of  quality.  The  rule,  in  such  case,  is  caveat 
emptor,  and  the  purchaser,  in  the  absence  of  fraud, 
takes  the  risk  of  quality  upon  himself.^  If  the  spe- 
cific chattel  has  a  potential  existence  at  the  time  of 
the  sale,  and  is  inspected  by  the  purchaser,  and  the 
sale  is  free  from  fraud,  the  rule  above  stated  has  no 


Incident-H —  War  rant  U  a.  91 

exception,-  nor  will  a  warranty  of  (juality  be  implied 
from  payment  of  a  full  price. '^ 

Where  a  vendor  is  so  situated  that  he  may  be  rea- 
sonably supposed  to  know  the  condition  and  quality 
of  the  goods,  the  vendee  may  reasonably  rely  upon 
mch  supposition.  A  rule  of  a  board  of  trade  that,  in 
cash  sales  of  provisions,  the  vendee  may  have  ^them 
inspected  at  his  own  expense,  and,  if  he  accepts  them 
without  inspection,  he  takes  them  at  his  own  risk,  is 
unreasonable,  and  does  not  apply.' 

Representations  made  by  the  vendor  at  the  time 
of  the  sale,  in  respect  to  the  quality  of  the  thing  sold, 
which  are  relied  upon  by  the  vendee,  amount  to  a 
warranty.''  But  words  of  description  in  a  contract  or 
bill  of  parcels  do  not  imply  a  contract  of  warranty 
that  the  property  is  of  the  kind  and  description 
specified.'^  Nor  will  a  mere  praise  of  personal  prop- 
erty, indulged  in  by  the  vendor  when  offering  it  for 
sale,  amount  to  an  implied  warranty  of  its  quality  or 
condition,  if  the  vendee  has  an  opportunity  to  exam- 
ine it,  and  fails  to  do  so,  no  artifice  having  been  used 
by  the  vendor  to  prevent  an  examination."  For 
where  goods  are  open  to  inspection,  and  are  actually 
examined  before  the  sale,  there  is  no  implied  war- 
ranty of  quality,  though  the  vendor  may  be  the 
manufacturer.'*  The  same  rule  applies  where  goods 
have  been  in  existence  and  in  the  vendee's  custody 
for  some  time  before  the  sale,  and  are  then  in  his 
custody.'-' 

Where  one  agrees  to  furnish  an  article  similar  to  a 
certain  model  or  design,  there  is  no  implied  warranty 
of  quality  beyond  conformity  to  the  model  or  design.^" 
Nor  can  a  vendor  who  makes  no  warranty  or  assur- 
ance as  to  the  thmg  sold,  be  answerable  for  defects 
latent,  or  otherwise,  of  which  he  had  no  knowledge." 


92  Conditional  Sales. 

If  the  contract  of  sale  is  made  solely  by  corre- 
spondence, the  question  of  warranty  of  quality  is  for 
the  court;  and,  although  parol  evidence  is  not  ad- 
missible to  contradict  the  agreement,  the  court  may 
look  not  only  to  the  language  of  the  correspondence, 
but  subject-matter  of  the  agreement  and  surrounding 
circumstances,  so  as  to  be  able  to  see  the  transaction 
as  the  parties  themselves  saw  it.^- 

(1)  Benjamin  on  Sales,  §  611  ;  Earley  v.  Gareett,  9  B.  &  C.  (Eng.)  928; 
Ormrod  v.  Huth,  14  M.  &  W.  (Eng.)  664;  Mixer  v.  Coburn,  11  Mete 
(Mass.)  559;  French  v.  Vining,  102  Mass.  135;  Dean  v.  Mason,  4  Conn. 
428;  Frazier  V.  Harvey,  34  Conn.  469;  Sweet  v.  Colgate,  20  Johns.  (N. 
Y.)  196;  Moses  v.  Mead,  1  Denio  (X.  Y.),  378;  Wright  v.  Hart,  18  Wend. 
449;  Kingsbury  v.  Taylor,  29  Me.  508;  s.  c,  50  Am.  Dec.  607;  Taymon 
V.  Mitchell,  1  Md.  Ch.  496;  Lord  v.  Grow,  39  Penn.  St.  88;  Carson  u. 
Bailie,  19  Penn.  St.  375;  s.  c,  57  Am.  Dec.  659;  Warren  v.  Philadelphia 
Coal  Co.,  83  Penn.  St.  437;  Hadley  ?;.  Clinton  Co.,  13  Ohio  St.  502;  Rob- 
erts V.  Hughes,  81  111.  130;  Bowman  v.  Clemmer,  50  Ind.  10;  Hadiey  v. 
Prather,  64  Ind.  137;  Otis  v.  Anderson,  10  S.  &  M.  (Miss.)  475  ;  Bryant 
V.  Pember,  45  Vt.  487. 

(2)  Chanter  v.  Hopkins,  4  M.  &  W.  (Eng.)  64;  Whittaker  v.  East- 
wood, 75  Penn.  St.  229;  Palmer's  Appeal,  96  Penn.  St.  106;  Hadley  v. 
Prather,  64  Tred.  137;  Deming  v.  Foster,  42  N.  H.  165;  Byrne  v.  Jan- 
sen,  50  Cal.  624. 

(3)  Mixer  u.  Coburn,  11  Mete.  (Mass.)  559;  S.  P.  Joslin  v.  Coughlin, 
26  Miss.  134;    Holden  v.  Dakin,  4  Johns.  (N.  Y.)  421 ;  Welsh  v.  Carter, 

I  Wend.  (N.  Y.)  185;  Beirne  r-.  Dord,  2  Sandf.  (N.  Y.)  89;  Caldwell  v. 
Smith,  4  Dev.  &  B.  (N.  C.)  L.  64;  Wetherill  v.  Neilson,  20  Penn.  St.  448 ; 
Hadley  v.  Clinton  Co.,  13  Ohio  St.  502;  Eagan  v.  Call,  34  Penn.  St.  236; 
Wilson  V.  Shackleford,  4  Rand.  (Va.)  5. 

(4)  Chicago  Packing  Co.  v.  Tilton,  87  111.  547. 

(5)  Hahn  v.  Doolittle,  18  Wi.s.  196. 

(6)  Hotchkiss  v.  Gage,  26  Barb.  (N.  Y.)  141.    See  Hogins  v.  Plympton, 

II  Pick.  (Mass.)  97. 

(7)  Byrne  v.  Jansen,  50  Cal  624. 

(8)  Barnett  v.  Stanton,  2  Ala  195. 

(9)  Dooley  v.  Gallagher,  3  Hughes,  C.  Ct.  214. 

(10)  Cosgrove  u.  Bennett,  32  Minn.  371. 

(11)  Neilson  v.  Dickinson,  1  Desau.  (S.  C.)  133. 

(12)  Dayton  v.  Hoogleind,  39  Ohio  St.  671. 

^  50.  Sale  by  Sample.  A  sale  by  sample  is  equiva- 
lent to  a  sale  by  description.     It  implies   that  the 


Incidents —  Warranties.  93 

goods  sold  are  of  the  quality  of  the  sample.  There 
being  no  op]M)rtunity  to  inspect  the  goods,  the  ven- 
dee relies  upon  the  representation  which  the  sample 
is  made  to  carry.  And,  therefore,  it  is  a  rule  that 
goods  bought  shall  be  equal  to  the  sample  by  which 
they  are  sold.^  In  Pennsylvania,  a  sale  by  sample  is 
a  guaranty  only  that  the  article  to  be  delivered  shall 
follow  its  kind  and  be  merchantable.'-  Yet  a  stipula- 
lation  that  a  future  delivery  will  equal  a  sample,  may 
become  a  condition  of  the  contract.'^ 

Where  a  sample  of  goods  is  exhibited  by  a  vendor, 
and  an  opportunity  is  given  to  examine  the  bulk 
from  which  it  was  taken,  although  it  be  inconvenient 
to  make  the  examination,  there  is  not  in  tliis  tact 
alone  sufficient  grounds  upon  which  to  establish  a 
sale  by  sample.  Consequently,  sale  by  sample  must 
exclude  an  opportunity  for  inspection,^  and  there 
must  be  evidence  that  a  sale  b}''  sample  was  in- 
tended.^ For  it  is  not  a  sale  by  sample  unless  both 
parties  deal  with  the  sample  with  mutual  under- 
standing that  the  bulk  is  like  it,  and  unless  they  do 
so  the  doctrine  of  caveat  emptor  api)lies.''  But 
whether  a  sale  is  by  sample  or  not,  is  a  question  of 
fact  to  be  left  to  the  jury.^ 

Where  a  vendor  is  not  a  manufacturer  of  goods 
sold  by  sample,  there  is  no  implied  warranty  against 
latent  defects  in  both  the  sample  and  the  bulk  of  the 
goods.*  But,  ill  an  action  by  the  vendee  for  the 
value  of  the  goods,  he  must  show  that  they  corre- 
spond with  the  sample.-'  And  it  has  been  held  that 
the  vendee  of  goods  sold  by  samjile,  is  entitled  to  a 
reasonable  time  after  their  arrival  to  test  tiieir 
quality,  and,  if  defective,  in  an  action  by  the  ven- 
dor for  the  price,  might  set  up  damages  for  breach 
of   warranty,   though    not    offering    to    return    the 


94  Conditional  Sales. 

goods,    but,    on   the   contrary,   retaining   and   using 
them.^" 

(1)  Dike  V.  Reitlinger,  23  Ilun,  241  ;  Siraond  v.  Braddon,  2  C.  B.  (N. 
S.)  324;  Cien  v.  McPherson,  1  Bosw.  (N.  Y.)  480;  Bradford  v.  Manley, 
13  Mass.  139;  Magee  v.  Billings,  3  Ala.  679;  Dayton  v.  Hooglund,  39 
Ohio  St.  671;  Voss  w.  McGuire,  18  Mo.  App.  477;  Hughes  v.  Bray,  60 
Cal.  284. 

(2)  Selser  V.  Roberts.  105  Penn.  St.  242 ;  West  Republic  Mining  Co. 
V.  Jones,  108  Penn.  St.  55;  Ryan  v.  Ulmer,  108  Penn.  St.  332;  s.  c,  56 
Am.  Rep.  210. 

(3)  Selser  u.  Roberts,  105  Penn.  St.  242;  West  Republic  Mining  Co. 
V.  Jones,  108  Penn.  St.  55. 

(4)  Berine  v.  Dord,  1  Seld.  95;  Dargons  v.  Stone,  1  Seld.  73;  Sands  v. 
Taylor,  5  Johns.  395. 

(5)  Selser  v.  Roberts,  105  Penn.  St.  242. 

(6)  Proctor  v.  Spratley,  78  Val  254;  Reynolds  v.  Palmer,  21  Fed.  Rep. 
433. 

(7)  Jones  V.  Wasson,  59  Tenn.  211;  Thorne  v.  McVeigh,  75  111.  81. 

(8)  Dickinson  v.  Gay,  7  Allen,  29. 

(9)  Hollinder  v.  Koetter,  20  Mo.  App.  79. 

(10)  Marsh  v.  McGreevy.  23  Hun  (N.  Y.),  408. 

§  51.  Description.  Where  a  vendor  of  goods  repre- 
sents them,  at  the  time  of  sale,  to  be  an  article  known 
in  the  market  V)y  a  particular  name,  and  the  vendee 
purchases  relying  upon  the  statements,  without  hav- 
ing an  opportunity  to  examine,  or  where  an  exami- 
nation would  not  enable  him  to  discover  whether  the 
goods  agreed  with  the  representations,  a  warranty  is 
implied  that  the  goods  are  of  the  kind,  character,  and 
description  represented.^  So,  also,  a  mere  sale  of  an 
article,  which  the  vendee  has  not  seen,  by  a  specific 
description  whose  meaning  is  known  to  the  parties, 
implies  a  guaranty  that  the  article,  when  delivered, 
shall  be  of  the  particular  description."  But  it  is  not 
necessary  that  the  article,  when  delivered,  should  be 
of  any  certain  quality  of  the  brand  or  description 
sold ;  for,  in  the  absence  of  fraud,  the  vendor  can 
only  be  called  upon  to  deliver  articles  of  the  speci- 
fied brand.^ 


Incidents —  Warranties.  95 

(1)  Van  Wyck  v.  Allen,  09  N.  Y.  01.  See  also  Section  30,  on  Sales 
by  Description. 

(li)  Ciitchings  V.  Ilacke,  la  Mo.  App.  51;  Whitaker  u.  McCormick,  6 
Mo.  App.  1 14. 

(3)  Dounoe  v.  Dow,  04  N.  Y.  411. 

§  52.  Special  Purpose.  Where  a  manufacturer  or 
dealer  contracts  to  supply  an  article  which  he  manu- 
factures or  produces,  or  in  which  he  deals,  to  be  ap- 
plied to  a  particular  purpose,  so  that  the  vendee 
necessarily  trusts  to  the  judgment  or  skill  of  the 
manufacturer  or  dealer,  there  is,  in  that  case,  an  im- 
plied term  or  warranty  that  it  shall  be  reasonably  fit 
for  the  purpose  to  which  it  is  to  be  applied.^  So,  too, 
upon  the  sale  of  an  article  by  the  manufacturer,  there 
is  an  implied  warranty  that  it  will  answer  the  pur- 
pose for  which  it  was  made.-  But  if  a  v^endee  inspects 
for  himself  the  specific  article  sold,  and  there  is  no 
express  warranty,  and  the  vendor  is  guilty  of  no 
fraud,  and  is  not  himself  the  manufacturer  of  the  ar- 
ticle, and  the  particular  use  which  is  to  be  made  of  it 
is  not  communicated  by  the  purchaser  at  the  time  of 
the  sale,  there  is  no  implied  warranty  on  the  part  of 
the  vendor  that  the  article  is  reasonably  fit  for  the 
purpose  to  which  it  is  to  be  applied,  although  the 
vendor  supposes  that  the  vendee  intends  to  use  it  for 
the  purpose  for  which  he  in  fact  buys  it.' 

If  a  manufacturer  undertakes  to  manufacture  for  a 
special  purpose,  there  is  an  implied  warranty  of  the 
manufacturer  that  the  article  is  fit  for  the  special 
purpose  intended  by  the  vendee ;  and  if  a  chattel  be 
manufactured  to  supi)ly  the  order  of  another,  who 
does  not  advise  the  manufacturer  of  any  special  pur- 
pose for  which  it  is  designed,  and  it  is  manufactured 
and  delivered  to  the  [)urchaser,  there  would  be  an 
implied  warranty  that  it  was  reasonably  tit  for  the 
purpose  for  which  it  was  ordinarily  used.^    This  rule 


96  Conditional  Sales. 

is,  however,  limited  to  those  cases  where  the  .uticle 
is  not  only  ordered  for  a  particuhir  purpose,  but 
where  the  manufacturer,  knowing  the  purpose,  under- 
takes to  meet  the  requirements,  and  the  buyer  trusts 
to  the  judgment  and  skill  of  the  manufacturer.  If 
one  orders  an  article  manufactured  for  some  particu- 
lar purpose  known  to  the  manufacturer,  and  it  is 
manufactured  in  accordance  with  specific  directions 
given,  and  delivered  to  the  purchaser,  there  would  be 
no  implied  warranty  that  it  would  answer  the  pur- 
pose for  which  it  was  intended  by  the  vendee.^  It  is 
sufficieiit  if  the  article  so  manufactured  fill  the  terms 
of  the  contract® 

Again,  it  has  been  held  that  a  manufacturer 
who,  for  a  fair  price,  undertakes  with  a  vendee  to 
manufacture  an  article  for  a  particular  purpose,  im- 
pliedly warrants  that  it  will  reasonably  perform  all 
the  operations  and  purposes  that  articles  of  the  par- 
ticular kind  contracted  for  would  perform,  but  not 
that  it  will  perform  what  articles  of  a  different  kind, 
though  of  the  same  general  class,  would  perform.' 
But  if  the  manufacturer  of  an  article  sell  it  for  a  par- 
ticular purpose,  the  vendee  making  known  to  him  at. 
the  time  tlie  purpose  for  which  he  buys  it,  the  ven- 
dor thereby  warrants  it  fit  for  such  purpose,  and  free 
from  latent  defect.^  This  rule  has  been  applied  to 
the  sale  of  steam  boilers,^  the  sale  of  leather  by  a 
manufacturer  to  a  shoemaker, ^°  the  sale  of  pianos  to  a 
dealer,"  the  sale  of  a  wind-mill,'^  and  the  sale  of 
whisky  barrels.^^  But,  like  all  good  rules,  this  too 
has  exceptions  ;  for  example,  the  matei  ial  to  be  used 
being  specified,  the  manufacturer  is  not  liable,  as 
upon  an  implied  warranty  of  the  sufficiency  of  the  ma- 
terial designated,  there  being  no  proof  that  he  did  not 
exercise  ordinary  diligence   in   selecting   material.^* 


Incidents —  Warranties.  97 

And  the  principle  that  if  an  article  is  ordered  for  a 
special  purpose,  and  is  sold  for  that  purpose,  there  is 
an  implied  warranty  that  it  is  tit  for  that  purpose, 
does  not  apply  to  cases  where  a  special  thing  is  or- 
dered, although  intended  for  a  special  purpose. ^^ 
The  same  is  true  of  the  sale  of  specific  articles,  se- 
lected by  the  vendee,  there  being  no  implied  war- 
ranty that  they  will  answer  the  purpose  for  which 
bought.^^ 

Where  an  agreement  is  for  the  sa^e  of  a  specific 
chattel  in  its  then  state,  there  is  no  implied  warranty 
of  its  fitness  or  merchantable  quality.^^  But  if  sold 
for  a  particular  purpose,  there  would  be  an  implied 
contract  that  the  article  was  suitable  and  proper  for 
such  purpose,^^  and  a  failure  of  such  warranty  is 
ground  for  rescission  of  a  contract  based  upon  it.  In 
defense  to  an  action  for  the  price,  the  vendee  is  not 
estopped  from  setting  up  a  breach  of  the  warranty, 
because  the  articles  had  been  received  and  partly 
paid  for,  in  ignorance  of  their  unfitness. ^^  However, 
the  vendee  seeking  a  rescission  for  failure  of  war- 
ranty, when  it  is  his  duty  to  expend  labor  and  skill 
in  order  to  render  the  articles  fit  for  the  purpose  of 
their  original  construction,  impliedly  warrants  that 
the  unfitness  of  the  article  is  not  occasioned  by  any 
fault  of  his  own.-'' 

(1)  Brown  v.  Edgington,  2  Man.  &  G.  279;  Jones  v.  Bright,  n  Bing. 
533;  Harris  v.  Waite,  51  Vt.  480;  Rease  v.  Sabin,  38  Vt.  432;  Hoe  v. 
Sanborn,  21  N.  Y.  552;  Brown  v.  Murphie,  31  Miss.  91;  Overton  v. 
Phelan,  2  Head  (Tenn.),  445;  Walton  v.  Cody,  1  Wis.  420;  Thomas  v. 
Simpson,  80  N.  C.  4;  Robinson  v.  Chandler,  56  Ind.  575;  Gibbs  v.  Hall, 
53  Ga.  635;  Gammell  v.  Gunby,  52  Ga.  504;  Lespard  v.  Van  Kirk,  27 
Wis.  152;  Highti).  Bacon,  126  Mass.  10;  Archdale  v.  Moore,  19  111.  565; 
Ricev.  Forsyth,  41  Md.  3S9. 

(2)  Brown  v.  Murphie,  31  Miss.  91  ;  Cunningham  i'.  Hall,  1  Sprague, 
404;   Beers  v.  Williams,  16  111.  69;   Brentou  v.  Davis,  8  Blackf.  (Ind.) 


98  Conditional  Sales. 

317;  Boyd  v.  Crawford,  Add.   (Penn.)  150;   Overton  v.  Phelan,  2  Head 
(Tenn.),  445;  Walton  v.  C^ody,  1  Wis.  420. 
(.3)  Hight  V.  Bacon,  126  Mass.  10. 

(4)  Bigge  V.  Parkinson,  7  H.  &  N,  (Eng.)955  ;  Brown  v.  Edgington,  2 
M.  &  G.  (Eng.)  279;  Jones  v.  Bright,  5  Bing.  (Eng.)  533;  Randall  v. 
Newson,  2  Q.  B.  D.  (Eng.)  102;  Kingsbury  v.  Taylor,  29  Me.  508;  Pa- 
cific Iron  Works  v.  Newhall,  34  Conn.  67;  White  v.  Miller,  71  N.  Y. 
118;  Robinson  Machine  Works  v.  Chandler,  56  Ind.  575;  Chicago 
Packing  Co.  v.  Tilton,  87  111.  547;  Pacific  Guano  Co.  v.  Muller,  66  Ala. 
582;   Brown  v.  Murphie,  31  Miss.  91;   Field  v.  Kinnear,  4  Kan.  476. 

(5)  Chanter  v.  Hopkins,  4  M.  &  W.  (Eng.)  399;  Olivant  v.  Bayley,  5 
Q.  B.  (Eng.)  288;  Tilton  Safe  Co.  v.  Tisdale,  49  Vt.  83;  Pease  v.  Salim^ 
38  Vt.  432;  Deming  v.  Foster,  42  N.  H.  165;  Pacific  Iron  Works  v.  New- 
hall,  34  Conn.  67;  Hargus  v.  Stone,  5  N.  Y.  73;  Wright  v.  Hart,  18 
Wend.  449;  Walcott  v.  Mount,  36  N.  J.  L.  262;  Port  Carbon  Iron  Co.  v. 
Groves,  68  Penn.  St.  149;  Mason  v.  Chappell,  15  Gratt.  (Va.)  572;  Girst 
V.  Jones,  32  Gratt.  518;  Brown  v.  Murphie,  31  Miss.  91  ;  Rodgers  v.  Niles, 
11  Ohio  St.  48;  Gammell  v.  Gunby,  52  Ga.  504 ;  Sims  v.  Howell,  49  Ga. 
620. 

(6)  Fisk  V.  Tank,  12  Wis.  276. 

(7)  Robinson  Machine  Works  v.  Chandler,  56  Ind.  575;  Harris  v. 
Waite,  5 1  Vt.  480. 

(8)  Lespard  v.  Van  Kirk,  27  Wis.  152. 

(9)  Rodgers  v.  Niles,  11  Ohio  St.  48;  Brown  v.  Sayles,  27  Vt.  227; 
Page  V.  Ford,  12  Ind.  46;  Street  v.  Chapman,  29  Ind.  142. 

(10)  Dowining  v.  Dearborn,  77  Me.  457. 

(11)  Snow  V.  Schomacker  Mfg.  Co.,  69  Ala.  Ill  ;  s.  c,  44  Am.  Rep. 
509. 

(12)  McClamrock  v.  Flint,  101  Ind.  278. 

(13)  Poland  v.  Miller,  95  Ind.  387;  s.  c,  48  Am.  Rep.  730. 

(14)  Shoenberger  v.  McEwen,  15  111.  App.  496. 

(15)  Port  Carbon  Iron  Co.  v.  Groves,  68  Penn.  St.  149.  See  also  Ul- 
rich  V.  Stohrer,  12Phila.  (Penn.)  199. 

(16)  Walker  v.  Pue,  57  Md.  155;  Tilton  Safe  Co.  v.  Tisdale,  48  Vt.  83. 

(17)  Broom's  Legal  Maxims,  614. 

(18)  Brown  v.  Sayles,  27  Vt.  227;  Beals  v.  Olmstead,  24  Vt.  114;  Gay- 
lord  Mfg.  Co.  V.  Allen,  53  N.  Y.  515;  Newberry  v.  Wall,  65  N.  Y.  484; 
Mo.ses  V.  Mead,  1  Denio  (N.  Y.),  378;  Witmore  v.  Iron  Co.,  Allen 
(Mass.),  .58;  Brenton  v.  Davis,  8  Blackf.  (Ind.)  317;  Bird  v.  Mayor,  8 
Wis.  362;  Weiger  u.  Gould,  86  Ind.  180;  Rice  v.  Forsyth,  41  Md.  389; 
Howie  V.  Rea,  70  N.  C.  529;  Wilcox  v.  Hall,  53  Ga.  635;  Sims  v.  Howell, 
49  Ga.  620;  Robson  v.  Miller,  12  S.  C.  586;  Byers  v.  Chapin,  28  Ohio  St 
300. 

(19)  Thomas  v.  Simpson,  80  N.  C.  4. 

(20)  Byer^u.  Chapin,  28  Ohio  St.  300. 


Incidents —  Warra7itie8.  99 

J  53.  Merchantable  Character.  Where  merchandise 
is  sold  to  arrive,  which  neither  party  can  inspect,  it 
would  be  contrary  to  sound  morality  and  public  pol- 
icy to  enforce  the  doctrine  of  "  caveat  emptor,"  and 
compel  the  purchaser  to  pay  for  goods  of  an  unmer- 
chantable quality.  The  first  principle  of  the  civil 
law,  "caveat  venditor,"  should  be  applied  in  such 
cases.  There  is  an  implied  engagement  in  the  con- 
tract itself,  that  the  article  sold  should  be  merchant- 
able.^ 

The  same  is  true  where  a  manufacturer  undertakes 
to  supply  goods  manufactured  by  himself,  or  in  which 
he  deals,  but  which  the  vendee  has  not  the  opportun- 
ity of  inspecting;  it  is  an  implied  term  in  the  con- 
tract that  he  shall  supply  a  merchantable  article.^ 
And  where  one  sells  goods  under  circumstances  to 
justify  the  vendee  in  believing  them  to  be  of  the  ven- 
dor's own  manufacture,  a  rule  of  a  board  of  trade  will 
have  no  application  to  prevent  a  warranty  of  their 
merchantable  quality,  as  implied  by  law.^ 

But  the  rule  is  not  limited  to  manufacturers ;  it  is 
extended  to  cases  where  one  merchant  contracts  to 
supply  goods  of  a  specific  description  to  another  mer- 
chant or  dealer.^  Especially  is  this  true  where  the 
merchandise  is  not  seen  by  the  vendee,^  or  an  exami- 
nation is  impracticable.*'  For  there  is  no  implied 
warranty  of  the  merchantable  character  of  an  article 
of  which  the  vendor  is  not  the  manufacturer,  and  in 
regard  to  which  the  vendee  has  equal  opportunity  for 
knowledge.^  As  to  complete  contracts,  it  is  a  general 
rule  that,  unless  there  has  been  a  warranty,  false 
representations,  or  fraudulent  concealment,  the  ven- 
dee must  take  the  property  regardless  of  its  defects; 
while,  as  to  executory  sales,  the  contract  always 
carries  an  obligation  that   the  article  sold  shall  be 


100  Conditional  Sales. 

merchantable,    at    least   without    any   unreasonable 
defect.^ 

Though  the  vendee,  in  the  absence  of  express  stipu. 
lation,  can  not  insist  that  the  article  shall  be  of  any- 
special  degree  of  fineness,  yet  he  has  a  right  to  insist 
that  it  shall  be  of  medium  quality  or  goodness,  free 
from  such  defects  as  would  render  it  unmerchantable, 
or  unfit  for  the  purpose  for  which  it  is  ordinarily  used.* 
This  rule  has  been  applied  to  sales  of  wheat,^°  guano, 
or  superphospate,"  ice,^^  and  lumber/^  But  the  rule 
does  not  apply  to  sales  of  the  residuum  or  refuse  of 
manufacturing  establishments.  It  is  often  the  sub- 
ject of  sale,  but  the  quality  of  such  refuse  matter  is 
entirely  subordinate  to  the  process  which  is  the  main 
object  of  the  manufacturer;  and,  on  such  a  sale, 
there  is  no  implied  warranty  that  the  article,  when 
delivered,  shall  be  of  a  merchantable  quality,  as  a 
manufactured  article.^"^ 

(1)  Newbery  v.  Wall,  35  N.  Y.  Sup.  Ct.  106. 

(2)  Laing  v.  Fidgeon,  4  Camp.  (Eng.)  169;  Jones  v.  Just,  L.  R.  3  Q. 
B.  (Eng.)  197;  Randall  v.  Newson,  2  Q.  B.  Div.  102;  Shephard  v.  Pay- 
bus,  3  Man.  &  G.  868;  Babcock  v.  Trice,  18  111.  420;  Thomas  v.  Simp- 
son, 80  N.  C.  4;  Cunningham  v.  Hall,  Sprague,  404;  Chambers  v. 
Crawford,  Add.  (Penn.)  1.50;  Merriam  v.  Field,  39  Wis.  578;  Leopold 
V.  Vankirk,  27  Wis.  152;  McClung  v.  Kelley,  21  Iowa,  508;  Moore  v. 
McKinlay,  5  Cal.  471;  Pease  v.  Sabin,  38  Vt.  432;  Harris  ;;.  Waite, 
51  Vt.  480;  Mann  v.  Everston,  32  Ind.  355;  Hoe  v.  Sanburn,  21  N.  Y. 
552. 

(3)  Chicago  Packing  Co.  v.  Tilton,  87  111.  547. 

(4)  Jones  v.  Just,  L.  R.  3  Q.  B.  197 ;  Hanks  v.  McKee,  2  Litt.  (Ky.)  227; 
Whittaker  w.  McCormick,  6  Mo.  App.  114;  Borrekins  v.  Bevan,  3  Rawle, 
23;  Jennings  v.  Gratz,  3  Rawle,  168;  Ketchum  v.  Wells,  19  Wis.  34; 
Hawkins  v.  Pemberton,  51  N.  Y.  148;  Wyck  v.  Allen,  69  N.  Y.  61; 
White  V.  Miller,  71  N.  Y.  118;  Lewis  v.  Rountree,  78  N.  C.  323;  More- 
house V.  Comstock,  42  Wis.  626 ;  Port  Carbon  v.  Groves,  68  Penn.  St. 
149;  Walcott  v.  Mount,  9  Vroom,  496;  Flint  v.  Lyons,  4  Cal.  474;  Mes- 
senger V.  Pratt,  3  Lans.  234. 

(5)  Howard  v.  Iloey,  23  Wend.  (N.  Y.)  350. 

(6)  Hyatt  u.  Boyle,  5  Gill  &  Johns.  110;  Hart  v.  Wright  17  Wend. 
267. 


Incidents — Warranties.  101 

(7)  Bartlettv.  Hoppock,  34  N.  Y.  118. 

(8)  McClung  V.  Kelley,  21  Iowa,  508;   Hamilton  v.  (ranyard,  34  Barb 
(N.  Y.)  204;  Clew  v.  McPherson,  1  Bosw.  (X.  Y.)  480. 

(9)  Howard  v.  lloey,  23  Wend.  Sol;  Brown  v.  Sayles,  27  Vt.  227. 

(10)  S.  P.  Babcock  v.  Trice,  18  111.  420;   Fish  v.  Kosebt-rry,  22  111  288. 

(11)  Sims  V.  Howell,  49  Ga.  620;  Gammell  v.  Gumby,  52  Ga.  504. 

(12)  Warner  v.  Arctic  lee  Co.,  74  Me.  475. 

(13)  Merriamv.  Field,  39  Wis.  578. 

(14)  Holden  v.  Chancey,  58  Barb.  (N.  Y.)  590. 

5  64.  Soundness.  That  a  sound  price  implies  a 
warranty  of  soundness  of  the  property  which  extends 
to  defects  known  and  unknown/  is  a  much  ques- 
tioned doctrine ;-  and  it  has  been  held  that  the  doc- 
trine of  implied  warranty,  from  the  soundness  of  the 
price,  reUites  only  to  secret  defects  which  can  not,  by 
ordinary  skill  and  diligence,  be  discovered.^  Such  a 
warranty  is  not  excluded  by  a  written  contract  of 
sale  containing  an  express  warranty  of  title.''  But 
no  evidence  of  a  custom  or  usage  is  admissible  to 
show  that  the  sale  of  any  particular  article  implies 
a  warranty  of  goodness  of  that  article.^ 

The  sale  of  a  chattel  b}^  the  maker,  implies  a  war- 
ranty against  latent  defects  growing  out  of  the  pro- 
cess of  manufacture.*'  But  where  it  is  sold  with  the 
understanding  that  it  is  unsound  from  any  cause,  and, 
in  consequence  of  such  understanding,  it  sells  for  less 
than  it  would  otherwise  have  brought,  no  general  im- 
plication of  warranty  of  soundness  arises,  unless  the 
vendor  has  been  guilty  of  deceit,  or  such  false  repre- 
sentation as  was  calculated  to  suppress  free  inquiry, 
or  lull  the  suspicions  of  a  reasonable  man."  For  a 
vendor  is  liable  if  he  knows  of  a  defect  in  the  chattel 
sold,  which  is  unknown  to  the  vendee,  and  does  not 
disclose  it.~^ 

Where  perishable  goods  are  sold,  to  be  shipped  to 
a  distant  market,  a  warranty  is  implied  that  they  are 
properly  packed  and  fit  for  such  shipment,  but  not 


102  Conditional  Sales, 

that  they  will  continue  sound  for  any  particular  or 
definite  period.  The  implied  warranty  will  not  cover 
unforeseen  contingencies,^  nor  will  proof  of  the  worth- 
lessness  of  the  goods  received  be  allowed  to  defeat 
the  vendor's  claim  for  the  purchase  price.  ^"^ 

On  a  sale  of  provisions  by  the  quantity,  as  mer- 
chandise, there  is  no  implied  warranty  that  the  whole 
is  sound.^^  For  a  warranty  that  provisions  are  whole- 
some and  fit  for  consumption,  if  implied  at  all,  is  im- 
plied only  where  they  are  sold  for  C(  nsumption,  or 
immediate  domestic  use,  by  the  vendee,  and  not 
where  they  are  sold  as  merchandise.^^  When  sold 
for  immediate  domestic  use,  the  vendor,  at  his  peril, 
is  bound  to  know  that  they  are  sound  and  wholesome; 
and  if  they  are  not  so,  he  is  liable  to  an  action  on  the 
case,  at  the  suit  of  the  vendee.^^' 

(1)  Mitchell  V  Dubose,  1  Treadw.  (S.  C.)  Const.  360;  Crawford  v. 
Wilson,  2  Treadw.  (S.  C.)  Const.  353;  Lester  v.  Graham.  1  Treadw.  (S. 
C.)  Const.  182;  Whitefield  v.  McLeod,  2  Bay  (S.  C),  380;  State  v.  Gael- 
lard,  2  Bay,  19 ;  Timrod  v.  Schoolbred,  2  Bay,  324;  Barnard  v.  Yates,  1 
Nott.  &  M.  (S.  C.)  142;  Eastland  v.  Longshorn,  1  Nott.  &  M.  194;  Miss- 
room  V.  Waldo,  2  Nott.  &  M.  76;  Thompson  v.  Lindsley,  Mill  (S.  C.) 
Const.  236;  Calcock  v.  Reid,  3  McCord  (S.  C.)  513;  Bailey  v.  Nicholls,  2 
Root  (Conn.),  407. 

(2)  Johnson  v.  Cope,  3  Har.  &  J.  (Md.)  90;  Penniman  v.  Pierson,  1 
D.  Chip.  (Vt.)  394;  Dean  v.  Mason,  4  Conn.  428;  Cozzins  v.  Whittaker, 
3  Stew.  &  P.  (Ala.)  322;  Defreeze  v.  Trumper,  1  Johns.  (N.  Y.)  274; 
Holden  v.  Dakin,  4  Johns.  (N.  Y.)  421 ;  Boyd  v.  Whitfield,  19  Ark.  447; 
Loris  V.  Long,  Tayl.  (N.  C.)  17. 

(3)  Rose  V.  Beatie,  2  Nott.  &  M.  (S.  C.)  538;  Bragg  v.  Morrill,  49  Vt. 
45;   Hoult  V.  Baldwin,  67  Cal.  610. 

(4)  Wood  V.  Ashe,  3  Strobh  (S.  C.)  64;  Trimmier  v.  Thomson,  10  S. 
C.  164. 

(5)  Thompson  v.  Ashton,  14  Johns.  (X.  Y.)  316. 

(6)  Hoe  V.  Sanborn,  21  N.  Y.  552. 

(7)  Watson  v.  Burrill,  1  Rich.  (S.  C.)  402. 

(8)  McGarock  v.  Ward,  Cooke  (Tenn  ),  403.  But  see  Oneida  Mfg. 
Co.  V.  Lawrence,  4  Cow.  (N.  Y.)  440. 

(9)  Mann  v.  Everston,  32  Ind.  355. 

(10)  Richardson  v.  Bouck,  42  Iowa,  185. 

(11)  Jones  V.  Murray,  3  T.  B.  Mon.  (Ky.)  83;  Emerson  v.  Brigham,  10 


Incidents —  Warranties.  103 

Mass.  197;  Moses  v.  Mead  1  Den.  (X.  Y.)378;  s.  c.,5  Den.  617;   Ilyland 
V.  Sherman,  2  E.  D.  Smith  (N.  Y.),  234. 

(12)  Ryder  v.  Neitge,  2  Minn.  70. 

(13)  Van  Bracklin  v.  Fonda,  12  John?.  (N.  Y.)  467;   Hover  v.  Peters, 
18  Mich.  51. 

Article  13. — Express  Warranties. 

§  55.   What  Amounts  to  a  Warranty. 
.  §  56.  What  Does  Not  Amount  to  Warranty. 
§  57.  Effect  of  Warranty. 
§  58.  Breach  of  Warranty,  and  Rescission. 
§  59.  When  Action  Lies  for  Breach. 
§  60.  When  Action  Does  Not  Lie  for  Breach. 
§  61.  Measure  of  Damages. 

§  55.  What  Amounts  to  a  Warranty.  Although,  to 
constitute  a  warranty,  the  term  warrant  need  not  be 
used,  and  no  precise  form  of  expression  is  required, 
yet  there  must  bo  an  affirmation,  to  the  quality  or 
condition  of  the  thing  sold,  made  by  the  vendor  at 
the  time  of  the  sale,  for  the  purpose  of  assuring  the 
vendee  of  the  truth  of  the  fact  affirmed,  and  inducing 
him  to  make  the  purchase,  which  affirmation  is  so  re- 
ceived and  relied  upon  by  the  vendee.^  There  is, 
however,  a  distinction  as  to  the  legal  effect  of  ex- 
pressions when  used  in  reference  to  a  matter  of  fact, 
and  when  used  to  express  an  opinion.  When  the 
representation  is  positive,"  and  relates  to  a  matter 
of  fact,^  it  constitutes  a  warranty ;  but  where  it  re- 
lates to  that  which  is  a  matter  of  opinion,  or  fancy, 
it  does  not  amount  to  a  warranty  unless  there  are 
other  declarations  which  leave  no  doubt  of  the  inten- 
tion to  warrant.^  Whether  a  particular  representa- 
tion was  a  warranty,  or  a  mere  expression  of  opinion, 
depends  on  what  was  the  understanding  or  intention 
of  the  parties.^  For  if  the  vendor,  at  the  time  of  the 
sale,  makes  representations,  or  assertions,  on  whir-h 
he  intends  the  vendee  to  rely,  and  on  which  he  does 


104  Conditional  Sales. 

rely,  it  is  a  warranty.'^  But  such  representations  of 
the  vendor,  to  bo  relied  on  to  make  a  wjirranty,  must 
be  so  made  as  to  authorize  the  vendee  to  understand 
that  the  vendor  intended  to  be  bound  by  them,  and 
must  have  been  relied  upon  by  the  vendee^  How- 
ever, it  has  been  held  that  any  assertion  or  affirma- 
tion respecting  the  quality  of  the  article,  made  by 
the  vendor  to  the  vendee,  during  the  negotiations  to 
effect  the  sale,  will  be  regarded  as  a  warranty,  if  re- 
lied on  by  the  vendee.^ 

Whether  what  passed  between  the  parties  amounted 
to  a  warranty,  or  was  merely  a  recommendation  or 
expression  of  opinion,  is  a  matter  for  the  jury  to  de- 
termine, unless  the  language  used  has  a  fixed  or  tech- 
nical meaning.^  The  question  for  the  jury  is  not 
whether  the  vendor  intended  to  warrant,  but  whether 
he  did  warrant,  and  this  is  to  be  determined  by  the 
language  used.^°  Yet  the  intent  to  warrant  may  be 
inferred  from  the  words  used,  the  circumstances,  and 
the  subject-matter."  But  the  question,  as  to  whether 
an  express  warranty  was,  or  was  not  made,  is  one 
alone  for  the  jury  to  determine,  on  the  weight  of  the 
evidence.^^ 

Where  a  vendor  makes  representations  to  the  ven- 
dee concerning  the  kind  or  quality  of  the  article  sold, 
on  which  the  vendee  relies,  and  is  known  to  the  ven- 
dor to  rely,  and  on  which  the  vendor  intended  and 
expected  that  he  should  rely — the  article  not  being 
present  or  subject  to  inspection,  and  the  vendee  hav- 
ing: no  other  means  of  information  than  the  statements 
of  the  vendor — such  representations  will  be  held  a 
warranty.^^  So,  the  use  of  the  word  "  Haxall  "  in  a 
sale  note  of  flour,  has  been  held  a  warranty  that  the 
flour  was  "Haxall;""  and  the  use  of  the  words, 
*'  good  milling  wheat,"  constitutes  a  warranty  as  to 


Incidents —  Warranties.  105 

qiialitv.^^     Representations  by  a  vendor,  upon  a  sale 
of  flour  in  Ijurrels,  that  it  is  in  quality  superfine;^'"'  of 
fruit,  that  it  was  tirst-class;^"  of  oil,  that  it  was  j)rirae 
winter  oil  ;^^  and  of  the  sale  of  wool  in  sacks,  marked 
on  the  sacks  and  described  in  the  invoice,  as  being 
of  a  certain  (juality,^^  have  each  been  held,  as  a  mat- 
ter of  law,  to  amount  to  a  warranty  of  quality.     And 
an  agreement  by  the  vendor  of  a  heater,  "  to  protect 
the  sale  from  infringement  on  other  heaters,"    has 
been  construed  as  a  warranty  that  the  article  sold 
was  not  an  infringement  of  any  patent.'-^    Representa- 
tions by  the  vendor  of  the  quality  of  the  thing  sold, 
or  of  its  fitness  for  a  particular  purpose,  intended  as 
a  part  of  the  contract  ot  sale,  and  relied  upon  by  the 
vendee,  constitute  a  contract  of  warranty.-^      For  ex- 
ample,  representations   by   the    vendor  of  a  patent 
screw   for   elevating   hay,   "  that   it   would  work  in 
all  kinds  of  hay,  grain,  straw,  and  other  grass,"  and 
was,  "  in  all  respects,  fit  for  the  use  intended,"  were 
held  to  amount  to  a  warranty;-  so,  also,  where  ma- 
chinery was  ordered  for  a  special  purpose,-^  or  the 
goods  to  be  manufactured  are  to  correspond  in  qual- 
ity to  certain  other  goods,-*  or  the  material  furnished 
to  a  manufacturer  is  to  be  equal  in  quality  to  any 
brand  of  the  same  material.^ 

Misrepresentations  as  to  the  character  and  condi- 
tion of  articles  sold,  made  to  influence  the  bargain, 
and  having  that  efi*ect,  are  equivalent  to  warranties, 
whether  made  innocently  or  fraudulently,  and  whether 
inserted  in  the  written  contract  of  sale  or  not.-'"'  Nor 
will  the  representations,  which  would  be  sufficient  to 
constitute  a  warranty,  be  deprived  of  that  character 
by  the  fact  that  they  were  false  and  fraudulent! v 
made.-'  But  a  transaction  can  not  be  characterized 
as  a  warranty  and  a  fraud  at  the  same  time — a  war- 


106  Conditional  Sales. 

ranty  rests  upon  a  contract,  while  fraudulent  repre- 
sentations have  no  element  of  contract  in  them,  but 
are  essentially  a  tort.-^ 

Where  a  bill  of  parcels  is  given,  upon  a  sale  of 
goods,  or  describing  the  goods,  or  designating  them 
by  a  name  well  understood,  such  bill  is  to  be  consid- 
ered as  a  warranty  that  the  goods  sold  are  what  they 
are  thus  described  or  designated  to  be ;  and  this  rule 
applies,  though  the  goods  are  examined  by  the  pur- 
chaser at  or  before  the  sale,  if  they  are  so  prepared* 
and  present  such  an  appearance,  as  to  deceive  skill- 
ful dealers. '^^  A  warranty  may  also  be  created  by  a 
reasonable  and  established  custom  or  usage  of  trade,^'' 
or  by  reference  to  a  printed  warranty  contained  in  a 
circular.^^ 

Any  thing  may,  by  contract,  be  made  the  subject 
of  warranty,  as  the  value  of  the  article,  if  a  material 
fact.^^  But  a  warranty  of  title,  in  a  bill  of  sale,  is  an 
exclusion  of  all  other  warranties,^^  although  it  has 
also  been  held  that  an  express  warranty  of  property 
can  not  be  fairly  construed  to  intend  an  exclusion  of 
the  natural  implied  warranty  of  soundness.^'* 

A  warranty  may  be  verbal,  or  in  writing,''^  and 
may  be  made  while  the  parties  are  in  treaty  for  the 
sale,  although  the  sale  does  not  take  place  until  some 
days  afterward. ^'^  And  a  vendor  will  be  bound  by  an 
express  warranty  of  quality,  distinctly  made  at  the 
close  of  the  negotiation,  although,  in  the  course  of  the 
previous  conversation,  he  may  have  stated  the  truth 
on  the  same  point.^'^  A  warranty  made  after  a  con- 
tract of  sale  is  completed  is  inoperative,  unless  there 
is  some  new  consideration,  distinct  from  that  of  the 
sale,  to  sustain  it."^ 

An  agent  who  is  authorized  to  sell  a  manufactured 
article  for  the  makers,  may  bind  them  by  an  express 


Incidents — Warranties.  107 

warranty,  notwithstanding  any  private  instructions 
which  are  unknown  to  the  purchaser.-''-*  A  joint 
owner  of  personal  property  is  not  bound  by  the 
false  representations  or  false  warranty  of  the  other 
joint  owners,  unless  expressly  authorized  by  them.^'' 
But  where  a  joint  owner  of  property,  authorized  to 
sell,  warrants  the  soundness  of  the  property,  which 
is  found  to  be  defective,  and  the  seller  pays  for  the 
defect  without  suit,  the  other  joint  owner  is  bound 
to  contribute  to  the  loss  in  proportion  to  his  in- 
terest." 

(1)  Hawkins  v.  Berry,  10  111.  (5  Gilm.)  31'.;  S.  P.  Ender  v.  Scott,  1 1  111 
35;  Kaiidall  v.  Thornton,  43  Me.  226;  Marsh  v.  Webber,  \?,  Minn.  109 
Morrill  v.  Wallace,  9  N.  II.  1 1  1  ;  Bryant  v.  Crosby,  40  Me.  9;  Sweet  v 
Bradley,  24  Barb.  (N.  Y.)  549;  Blakeman  v.  Makay,  1  Hilt.  (N.  Y.)  266 
Foggart  V.  Blackweller,  4  Ired.  (N.  C.)  L.  238;  Beals  v.  Olmsted,  24  Vt 
114.^ 

(2)  Carter  v.  Black,  46  Md.  384. 

(3)  Polhemus  v.  Heiman,  45  Cal.  573. 

(4)  Reed  v.  Hastings,  61  111.  266. 

(5)  Patrick  v.  Leach,  8  Neb.  5:30. 

(6)  Dickens  v.  Williams,  2  B.  Mon.  (Ky.)  374. 

(7)  Torkelson  v.  Jorgenson,  28  Minn   383. 

(8)  Neane  u.  Arntz,  56  Wis.  174. 

(9)  Murray  v.  Smith,  4  Daly  (N.  Y.),  277;  Bradford  o.  Bush,  10  Ala. 
386;  Terhune  v.  Diver,  36  Ga.  64S;  Wheeler  v.  Reed,  .^6  111.  81  ;  McFar- 
land  V.  Newman,  9  Watts  (Penn.),  55;  Kinley  v.  Fitzpatrick,  5  Miss.  (4 
How.)  59;  Morrill  v.  Wallace,  9  N.  H.  Ill;  Baum  v.  Stevens,  2  Ired. 
(N.  C.)  L.  411 ;  Foggart  v.  Blackweller,  4  Ired.  (N.  C.)  L.  238. 

(10)  Smith  V.  Justice,  13  Wis.  600. 

(11)  Thome  u.  McVeigh,  75  111.  81. 

(12)  Boothby  v.  Scales.  27  Wis.  626. 

(13)  Warren  v.  Van  Pelt,  4  E.  D.  Smith  (N.  Y.)  202. 

(14)  Flint  V.  Lyon,  4  Cal.  17;  Bertram  i'.  Lyon,  1  McAll.  53;  Webber 
V.  Davis,  44  Me.  147. 

(15)  Jack  V   Des  Moines  &  Fort  Dodge  R.  R.  Co.,  53  Iowa,  399. 

(16)  Carley  1.  Wilkins,  6  Barb.  (X    Y.)557. 

(17)  Scott  V   Raymond.  ;>!  Minn.  4.')7. 

(18)  Ilastirgs  v.  Lovering,  2  Pick    (Mass.)  214. 

(19)  Richmond  Trading  k  Mfg.  Co.  v.  Farquar,  8  Blackf.  (Ind.)  89. 

(20)  Croninger  v.  Paige,  48  Wis.  229. 

(21)  Richardson  v.  Grandy,  49  Vt.  22. 


108  Conditional  Sales. 


(22 
(23 
(24 
(25 
(26 
(27 
(28 
(29 

&G. 
(30 
(31 

509. 
(32 
(33 
(34 

(S.  C. 
(35 
(36 
(37 
(38 


(39 
(40 
(41 


Elkins  V.  Kenyon,  34  Wis.  93. 

Whitehead  &  Atherton  Mche.  Co.  v.  Ryder,  139  Mass.  366, 
Briggi;.  Hilton,  11  Daly  (N.  Y.)  335. 
Park  V.  Morris  Co.,  41  How.  (N.  Y.)  Pr.  18. 
Waterbury  v.  Russell,  8  Baxter  (Tenn,),  159. 
Rose  V.  Hurley,  39  Ind.  77. 
Carter  v.  Abbott,  33  Iowa,  180. 

Henshaw  v.  Robins,  9  Mete.  (Mass.)  83;  Osgood  v.  Lewis,  2  Har. 
Md.)495. 
Fatman  v.  Thompson,  2  Disney  (Ohio),  482. 
Snow  V.  Schomacker  Mfg.  Co.,  69  Ala.  Ill;    s.  c,  44  Am.  Rep. 

Pickard  v.  McCormick,  11  Mich.  68. 
Wren  v.  Wardlaw,  Minor  (Ala.),  363. 

Houston  V.  Gilbert,  3  Brev.  (S.  C.)  63;  Wells  v.  Spears,  1  McCord 
,  421 ;   Hughes  v.  Banks,  1  McCord  (S.  C),  537. 
Lindsay  v.  Davis,  30  Mo.  406. 
Wilmot  V.  Hurd,  11  Wend.  (N.  Y.)  584. 
Deming  v.  Foster,  42  N.  11.  165. 
Summers  v.  Vaughan,  35  Ind.  323;   Congar  v.  Chamberlain,  14 


Wis.  258;  Towell  v.  Gatewood,  3  111.  (2  Scam.)  22. 


Boothby  v.  Scales,  27  Wis.  626. 

Holmes  v.  Wood,  32  Ind.  201. 

Davis  V.  Burnet,  4  Jones  (N.  C.)  L.  71. 


§  56.  What  Does  Not  Amount  to  a  Warranty.    As  was 

shown  in  the  preceding  section,  in  order  to  constitute 
an  express  warranty,  it  is  not  necessary  to  use  any 
particular  term,  if  the  \endor  intends,  by  his  lan- 
guage, to  warrant,  or  bind  himself,  that  the  article  in 
question  is  as  represented. 

But  a  mere  affirmation  that  a  thing  is  good  or 
sound,  a  general  praise,  commendation,  opinion,  or 
belief,  does  not  amount  to  a  warranty  when  not  so 
intended.^ 

If  a  representation  is  made,  in  the  course  of  a  nego- 
tiation for  a  sale,  and  the  contract  of  sale  is  afterward 
reduced  to  writing  and  signed,  and  does  not  contain  the 
representation,  it  is  excluded  from  the  contract,  and 
does  not  amount  to  a  warranty.^  For  parol  evidence 
is  not  admissible  to  add  a  warranty  to  a  written  con- 


Incidents —  Warranties.  109 

tract  of  sale.^  A  written  warranty,  gratuitously 
given  after  the  sale  of  personalty,  will  not  supersede 
an  oral  and  different  one  given  at  the  time  of  the 
sale/  Nor  can  the  vendee  of  an  article  rely  upon 
statements  made  by  the  manufacturer,  in  circulars 
relating  to  the  article,  as  a  warranty  that  it  will  do 
what  is  therein  stated.^ 

The  warranty  of  any  thing  sold,  as  to  quality,  is  no 
warranty  of  its  value  ^  And  where  the  vendee  pur- 
chases a  chattel  at  sight,  which  the  vendor  affirms  to 
be  worth  much  more  than  its  real  value,  no  action 
lies,  there  being  no  express  warranty."  For  state- 
ments as  to  jirice  and  value,  by  the  vendor,  are  not 
so  jealously  watched  in  law  as  statements  as  to  title 
and  quality.^ 

A  representation,  made  by  a  vendor,  respecting 
the  property  sold,  may  relieve  the  vendee  from  the 
use  of  that  care,  caution,  and  observation  that  he 
would  be  bound  to  exercise  if  no  representations  were 
made ;  but,  in  case  of  warranty,  an  obvious  defect  is 
not  cured  by  the  warranty,  because  the  law  requires 
the  vendee  to  examine  the  property  with  that  degree 
of  care  and  skill  that  men  generally  are  capable  of 
exercising  in  respect  to  property  they  are  proposing 
to  purchase.  The  same  principle  should  apply  in 
case  of  false  representations.  If  the  property  is  pres- 
ent, and  nothing  is  said  or  done  by  the  vendor  to  in- 
duce the  vendee  not  to  examine  it,  and 'the  falsity  of 
the  representations  is  palpable  to  the  senses,  the  ven- 
dee can  not  be  permitted  to  omit  examination,  and 
justify  his  omission  by  the  representation.^  If  the 
representations  made  upon  the  sale  of  an  article 
prove  utterly  false,  that  will  not  amount  to  a  war- 
ranty in  itself,  but  it  is  for  the  jury  to  say  whether 
the  representations  were  fraudulently  made.^° 


110  Conditional  Sales. 

All  representations  m.-ide  by  the  vendor  to  the  ven- 
dee, at  the  time  of  sale,  do  not  amount  to  a  war- 
ranty." The  assertion  or  affirmation  of  a  vendor 
concerning  the  article  sold  must  be  positive  and  un- 
equivocal. It  must  be  a  representation  which  the 
vendee  relies  on,  and  one  which  is  understood  by  the 
parties  as  an  absolute  assertion,  and  not  the  ex- 
pression of  an  opinion.^^  For  example,  statements  by 
a  vendor  of  an  apparatus  to  be  used  in  connection 
with  a  fuel  for  stoves,  that  it  was  of  great  value  ;  that 
in  its  use  there  was  no  dirt,  or  smoke ;  that  it  burned 
a  long  time,  and  could  be  run  for  small  expense ;  and 
that  experiments  had  been  made  therewith  which 
had  proved  successful,  were  held  to  be  mere  state- 
ments of  opinion,  and  fall  within  what  is  known  as 
"  dealer's  talk,"  and  are  not  sufficient  foundation  for 
an  action  for  deceit,  unless  the  vendee  has  been 
fraudulently  induced  to  omit  an  examination  of  the 
apparatus  for  himself.^^  In  the  absence  of  fraud,  or 
any  showing  of  fraud,  a  representation  by  the  vendor 
of  a  patent  plow  stock,  that  the  plow  would  sell  well 
in  Mississippi  or  any-where  else  ;^*  a  statement  by 
the  vendor  of  a  stock  of  goods  that,  in  his  belief,  the 
cost  of  the  goods  sold  would  amount  to  a  certain 
sum  ;^^  the  description  of  iron  sold  as  mill  iron,  in  a 
bill  rendered  to  the  vendor;^®  and  the  description  of 
tobacco,  in  a  bill  of  sale,  as  good  first  and  second  rate 
tobacco,^^  have  each  been  held  to  be  mere  statements 
or  expressions  of  opinion,  not  amounting  to  a  war- 
ranty. So,  the  use  of  the  words,  "approved  standard 
quality,"  in  a  contract  of  sale  of  merchandise;^*^  and 
the  use  of  the  words,  "  blue  vitriol,  sound,  and  in 
good  order,"  in  a  sale  of  vitriol  in  casks,"  have  been 
hold  not  to  raise  an  express  warranty,  they  having 


Incidents —  Warranties.  Ill 

been  used  merely  as  a  comtnercial  designation,  or  ex- 
pression, for  a  merchantable  article. 

A  bill  of  parcels,  designating  merchandise  sold  as 
of  a  particular  kind,  imposes  no  obligation  as  to  qual- 
ity, but  only  as  to  kind.-°  Where  the  contract  does 
not  specify  the  goods,  but  only  the  quality  of  the 
goods  to  be  delivered,  there  is  no  warranty  that  the 
goods  shall  be  of  the  quality'  mentioned;  and  the 
failure  to  comply  with  the  contract  is  not  a  breach  of 
warranty,  but  of  contract.^^  And  an  express  war- 
ranty of  quality  excludes  an  implied  warranty  that 
the  article  is  tit  for  its  intended  purpose."  A  pub- 
lic officer,  making  an  official  sale,  makes  no  war. 
ranty,  unless,  by  an  express  contract.^ 

(1)  O'Neal  V.  Bacon,  1  Houst.  (Del.)  215;  S.  P.  Moore  u.  McKinlay,5 
Cal.  471;  Adams  v.  Johnson,  115  111.  345;  Jones  v.  Quick,  28  Ind.  125; 
Ilillmaii  V.  Wilcox,  30  Me.  170;  Kinlay  v.  Fitzpatrick,  5  Miss.  (4  How.) 
59;  Morrill  v.  Wallace,  9  N  H.  Ill  ;  McGregor  v.  Penn,  9  Yerg.  (Tenn.) 
74;  Otts  V.  Alderson,  18  Miss.  (10  Sme.  &  M.  Ch.)  476;  Oneida  Manufac- 
turing Co.  V.  Lawrence,  4  Cow.  (N.  Y.)  440;  Roberts  v.  Morgan,  2  Cow. 
(N.  Y.)  438;  Chapman  v.  March,  19  Johns.  (N.  Y.)  290;  Whitney  v. 
Sutton,  10  Wend.  (N.  Y.)  411  ;  Rogers  v.  Ackerman,  22  Barb.  (N.  Y.) 
134;  Hensoii  v.  King,  3  Jones,  (N.  C.)  L.  419;  Weimer  v.  Clement,  37 
Penn.  St.  147. 

(2)  Randall  v.  Rhodes,  1  Curt.  90. 

(3)  Rice  V.  Forsyth,  41  Md.  389. 

(4)  Aultman  v.  Kennedy,  33  Minn.  339. 

(5)  Bermen  v.  Woods,  38  Ark.  351. 

(6)  Lightburn  v.  Cooper,  1  Dana  (Ky.),  273. 

(7)  David  v.  Meeker,  5  Johns.  (N.  Y.)  354. 

(8)  Simpson  v.  Wiggins,  3  Woodb.  &  M.  413. 

(9)  Vandawalkor  v.  Osmer,  65  Barb.  (N.  Y.)  556. 

(10)  Bigler  v.  Flickinger,  55  Penn.  St.  279. 

(11)  Leonard  v.  Peoples,  30  Ga.  61. 

(12)  Hakins  v.  Pemberton,  51  N.  Y.  198;  Horton  v.  Green,  66  N.  C. 
596;  Ricks  V.  Dillahunty,  8  Port.  (Ala)  133;  Baum  u.  Stevens,  2  Ired-. 
(N.  C.)  L.  411  ;  Bond  v.  Clark,  35  Vt.  577. 

(13)  Kimball  v.  Bangs,  (Mass.)  11  X.  E.  Rep.  113. 

(14)  Baldwin  v.  Daniel,  69  Ga.  782. 

(15)  Tenny  v.  Cowles,  (Wis.)  31  N.  W.  Rep.  221. 

(16)  Carondelet  Iron  Works  r.  Moore,  78  111.  65. 


112  Conditional  Sales. 

(17)  Towell  V.  Gatewood,  3  111.  (2  Scam.)  22. 

(18)  Cohen  v.  Piatt,  4  N.  Y.  Sup.  Ct.  483. 

(19)  Hawkins  v.  Pemberton,  6  Robt.  (N.  Y.)  42. 

(20)  Gunther  v.  Atwell,  19  Md.  157, 

(21)  Rickettsv.  Hays,  13  Ind.  181. 

(22)  International  Pavement  Co.  v.  Smith,  17  Mo.  App.  264;  McGraw 
V.  Fletcher,  35  Mich.  104. 

(23)  Commissioners  v.  Thomson,  4  McCord  (S.  C),  434. 

J  57.  Effect  of  a  Warranty.  On  a  sale  of  a  chattel, 
with  a  warranty,  express  or  implied,  in  the  absence 
of  fraud  on  the  vendor's  part,  if  the  article  is  not  as 
warranted,  the  vendee  may  return  it,  or  offer  to  re- 
turn it,  within  a  reasonable  time,  where  the  time  is 
not  fixed  by  special  contract,  and  thus  defeat  the  ven- 
dor's right  to  recover  any  part  of  the  price ;  or  may 
keep  the  chattel,  and,  in  an  action  for  the  price,  re- 
coup damages  for  breach  of  the  warranty.^  But  a 
vendee  of  property,  to  be  delivered  at  a  future  day, 
may,  by  taking  an  express  warranty,  at  the  time  of 
the  purchase,  that  the  goods,  when  delivered,  shall 
possess  the  particular  qualities  which  it  is  important 
for  him  to  secure,  relieve  himself  from  the  obligation 
to  return  the  property  on  discovering  its  inferiority, 
and  still  hold  the  vendor  responsible  for  the  defi- 
ciency in  quality.^  He  can  not,  however,  relieve  him- 
self from  the  obligation  to  pay  for  the  goods,  by  the 
exercise  of  an  arbitrary  opinion  as  to  the  quality. 
The  defect  must  be  such  as  to  amount  to  a  breach  of 
contract.  Where  the  contract  provides  that  if  the 
goods  did  not  correspond  to  the  warranty,  the  vendor 
was  to  be  notified,  and,  if  he  could  not  make  them 
satisfactory,  they  could  be  returned;  but  if,  after 
ninety  days,  they  suited  the  vendee,  he  was  to  pay 
for  them  on  the  terms  specified,  it  was  held  that  the 
vendee  could  not,  by  the  exercise  of  an  arbitrary 
discretion,  release  himself  from  the  obligation  to  pay.^ 


Incidents —  Warranties.  113 

And,  where  the  warranty  extends  to  a  certain  time, 
the  vendee  can  not  retain  and  use  the  goods  after  the 
time  of  warranty  had  expired,  without  becoming 
liable  to  pay.'* 

An  express  warranty  extends  to  all  defects,  whether 
known  or  unknown  to  the  vendor,  unless  they  be  such 
as  a  common  vendee  might  have  observed  at  the  time 
of  the  sale.'' 

And  a  general  warranty  of  soundness  may  cover 
even  patent  defects,  where  intended  so  to  be  cov- 
ered." It  has  also  been  held,  that  a  warranty  of 
title  draws  to  it  any  after  acquired  right  of  the  war- 
rantor." 

If  a  sale  is  with  warranty,  the  vendor  is  bound  to 
deliver  the  articles  of  the  stipulated  quality,  and  the 
examination  and  appropriation  of  some  of  the  articles 
by  the  vendee,  when  they  are  delivered,  does  not 
amount  to  a  waiver  of  the  contract.^  Nor  is  he  bound 
to  rescind  on  discovering  a  breach,  but  may  use  the 
goods  and  rely  on  the  warranty  f  and,  in  an  action  by 
the  vendor  for  the  price,  may  recover  the  damages 
found  to  have  been  suffered  by  reason  of  the  breach 
of  warranty.^" 

Where  an  executory  contract  for  the  sale  of 
material,  to  be  manufactured  into  articles  of  mer- 
chandise, is  with  warranty  of  its  fitness  for  the 
purpose  intended,  the  vendee,  upon  receipt,  is  not 
bound  to  apply  tests  before  using;  but  if  defects,  not 
open  and  visible,  are  thereafter  discovered,  which 
amount  to  a  breach  of  the  warranty,  he  has  his  rem. 
edy  thereon.^^ 

Or,  if  the  goods  are  purchased  upon  a  warranty  as 
to  quality,  for  the  purpose  of  combining  with  other 
material,  to  be  manufactured  into  articles  of  merchan- 
8 


114  Conditional  Sales. 

clise,  and,  on  using  part,  they  prove  to  be  defective 
and  worthless,  and,  upon  comparison,  it  is  found  that 
the  remainder  are  of  the  same  general  character  and 
apparent  quality,  the  vendee  is  justified  in  refusing 
to  further  use  them,  and  is  not  liable  for  the  pur- 
chase price/'  If  a  vendor,  in  selling  goods  which  he 
knows  to  be  designed  by  the  vendee  for  a  particular 
use,  warrants  them  to  be  "  perfect,"  this  must  be  con- 
strued to  mean  that  they  are  perfect  for  the  use  in- 
tended.^^ 

A  manufactur  who  sells  machinery  not  made  by 
himself,  with  a  warranty  that  it  is  in  good  condition, 
and,  if  not  found  so,  shall  be  placed  in  such  condition, 
puts  himself  in  a  position  analogous  to  that  of  one 
who  contracts  to  build  and  furnish. ^^     If  the  sale  be 
of  milling  machinery,  which  is  warranted  to  make 
flour  "  to  satisfy  the  trade  "  of  the  vendee,  the  trade 
meant  is  the  trade  in  and  around  the  place  where  the 
mill  is  situated.^^     It  is  a  fundamental  principle  of 
law  that  has  never  been  departed  from,  that  when 
the  obligations  of  an  express  warranty  are  concurrent, 
the  party  who  seeks  to  enforce  the  obligations  of  the 
other  must  prove  performance  on  his  part,  or  an  oifer 
to  perform.^*^    Yet  the  obligations  of  a  warranty  may 
be  waived  ;  and  if  the  vendee  accepts  the  goods  after 
examination,  there  being  no  fraud  on  the  part  of  the 
vendor,  he  can  not  afterward,  on  account  of  a  breach 
of  the  warranty,  rescind  the  contract  and  return  the 
goods,  in  the  absence  of  any  agreement  to  that  ef- 
fect.^^     But  where  the  vendor  becomes  liable  for  a 
breach  of  warranty,  the  mere  fact  that  his  vendee 
had  other  business   transactions  with  him,  and  did 
not  insist  on  payment  for  the  breach,  will  not  amount 
to  a  waiver.^^ 


Inculciiln —  Warranlics.  115 

(I)  Warder  v.  Fisher,  48  Wis.  338. 

{■!)   Woodley  v.  Davis,  ti;i  Barb.  (N.  Y.)  500. 
\i)  Flint  V.  Cook,  102  Ind.  391. 

(4)  Bristol  V.  Tracy,  21  Barb.  (N.  Y.)  236;  Webster  v.  i'hoenix  Insur- 
ance Co.,  3(3  Wis.  67;  Abbott  v.  Johnson.  2  N.  W.  Rep.  332;  Nichola  v. 
Hail,  4  Xeb.  210;  Miller  v.  Nichols,  5  Neb.  478;  Pitts  Sons  Mfg.  Co.  v. 
Spitsnogle,  6  N.  W.  Rep.  71;  Bayliss  u  Ilennessy,  6  N.  W.  Rep.  46;  J.  I. 
Case  Threshing  Machine  Co.  v.  Vennom,  23  N.  W.  Rep.  563. 

(5)  Ricks  V.  Dillahunty,  8  Port.  (Ala.)  133. 

(6)  Fletcher  v.  Young.  69  Ga.  591. 

(7)  Curran  v.  Burdsall,  20  Fed.  liep.  835. 

(8)  Willingsr.  Consequa,  Pet.  C.  Ct.  301. 

(9)  Brigg  V.  Hilton,  'J9  N.  Y.  517;  s.  c,  52  Am.  Rep.  63. 

(10)  Ilenkel  v.  Burke,  (Me.)  10  Am.  Rep.  249. 

(II)  Bounce  V.  Dow,  57  N.  Y.  16. 

(12)  Cooper  v.  Hall,  (Neb.)  34  N.  W.  Rep.  349. 

(13)  Roe  V.  Bacheldor,  41  W^is.  360. 

(14)  Kimball  Mfg.  Co.  v.  Vioman,  35  Mich.  310. 

(15)  Knowlton  v.  Oliver,  28  Fed.  Rep.  516. 

(16)  Dunham  v.  Pette,  8  N.  Y.  508;  Nichols  v.  Knowles,  18  N.  W. 
Rep.  413;  Wendall  v.  Osborne,  18  N.  W.  Rep.  709;  Warden  v.  Syca- 
more Harvester  Co.,  7  N.  W.  Rep.  756. 

(17)  Scranton  v.  Mechanics  Trading  Co.,  37  Cal.  130;  McCormick  v. 
Sarson,  45  N.  Y.  265 

(18)  Snow  V.  Sho.iiiicker  Mfg.  Co.,  69  Ala.  111. 

^  58.  Breach  of  Warranty,  and  Rescission.  A  latent 
defect,  existiiijsj;  ut  the  time  of  tlie  sale,  which,  by  the 
occurrence  of  natural  circumstances  develops  into  a 
serious  injury,  is  a  breach  of  warranty.^  As,  in  the 
case  of  a  warranty  on  the  sale  of  a  soda  fountain,  that 
it  was  in  good  condition,  the  warranty  is  broken  if, 
from  an  inherent  defect  in  its  construction,  existing 
at  the  time  of  the  sale,  it  was  liable  to  get  out  of  or- 
der from  time  to  time,  and  from  that  cause  failed  to 
answer  the  purpose  for  which  it  was  designed,  al- 
though it  was  in  a  good  condition  to  make  soda  water 
on  the  day  of  the  sale.-  If,  however,  accompanying  a 
sale,  there  is  a  warranty  that  the  article,  if  set  u[)  in 
a  certain  manner  or  location,  and  operated  in  a  cer- 
tain way,  will  prove  satisfactory,  and  such  war- 
ranty is  accepted  as   part  of  the   contract  of  sale, 


116  Conditional  Sales. 

before  advantage  can  be  taken  of  it,  the  vendee  must 
have  tested  it  after  it  had  been  set  up  in  sucli  a  man- 
ner and  location.^ 

One  seeking  the  rescission  of  a  contract  because  of 
fraudulent  representations,  must  oifer  to  rescind 
promptly  on  discovering  the  fraud.^  Or,  if  a  breach 
of  warranty  occurs,  and  the  vendee  elects  to  rescind, 
he  must  oifer  to  return  the  consideration  or  thing  re- 
ceived,^ unless  it  be  worthless,*^  and  notify  the  vendor 
of  his  election  to  rescind.'  And  if  the  vendor  be  a 
resident  of  a  foreign  state,  an  attempt  must  be  made 
to  give  him  notice  through  the  post-office.^  If  rescis- 
ion  is  claimed  for  default  of  performance  in  either 
party,  good  faith  requires  that  notice  of  the  claim  or 
purpose  to  rescind  be  given  wherever  an  omission  so 
to  do  would  reasonably  lend  the  defaulting  party  to 
incur  trouble  or  expense  in  future  performance ;  and, 
if  the  notice  be  not  given,  and  further  performance  is 
induced  by  such  silence,  the  right  to  rescind  will  be 
deemed  waived.^  Keeping  the  property  an  unreason- 
able time,  without  objection,  will  also  be  deemed  a 
waiver ;  and  it  has  been  held,  that  where  the  vendee 
kept  the  property  two  months,  without  objection,  he 
was  bound  to  pay  for  it,  there  being  no  fraud.^*' 

(1)  Hooku.  Stovall,  21  Ga.  G9. 

(2)  Pritchard  v.  Fox,  4  Jones  (N.  C.)  L.  140. 

(.3)  Exhaust  Ventilator  Co.  v.  C.  M.  &  St.  P.  Ry.  Co.,  (Wis.)  28  N.  W. 
Rep.  343. 

(4)  Parmlee  v.  Adolph,  28  Ohio  St.  10. 

(.5)  Weed  v.  Page,  7  Wis.  503;  Christy  v.  Cummins,  3  McLean,  386; 
Coghill  V.  Boring,  1.5  Call,  213;   Bigelow  on  Fraud,  408-424. 

(6)  Fleetwood  v.  Dorsey  Mche.  Co.,  95  Ind.  491. 

(7)  Smalley  v.  Hendrickson,  29  N.  J.  L.  371 ;  Dewey  v.  Erie  Borough, 
14  Penn.  St.  211 ;  Moral  School  Township  v.  Harrison,  74  Ind.  93;  Paul- 
son V.  Osborne  &  Co.,  27  N.  W.  Rep.  203. 

(8)  Dewey  v.  Erie  Borough,  14  Penn.  St.  (2  Harris)  211. 

(9)  Seeds  v.  Simpson,  16  Ohio  St.  321 ;  Kirby  v.  Harrison,  2  Ohio  St. 
326. 


Incidents —  Warranties.  117 

(10)  Percival  v.  Blake,  2  C  &  P.  r>14  See  Grimaldi  v.  White,  4  Esp. 
96,  Groning  v.  Mendham,  1  Stark.  257;  Hopkins  v.  Appleby,  1  Stark. 
477;  Kellog  V.  Denslow,  14<"niiii    411. 

§  59  When  Action  Lies  for  Breach.  Money  may 
be  recovereel  which  has  been  paid  for  goods  sold  on  a 
warranty,  express  or  implied,  that  they  are  of  a  speci- 
fied kind  or  quality,  when  they  prove  to  be  of  a  dif- 
ferent kind,  or  inferior  quality,  after  a  return,  or  an 
offer  to  return  them,  though  the  vendor  were  inno- 
cent,^ for  the  right  of  action  arises  under  the  contract 
irrespective  of  fraud  on  the  part  of  the  vendoi.^  But 
money  so  paid  can  not  be  reclaimed,  where  the  prop- 
erty is  of  any  value,  unless  the  vendee  first  returns  or 
offers  to  return  it  ^ 

If,  however,  the  vendee  elects  to  keep  the  property, 
he  could  maintain  an  action  for  breach  of  warranty  ;^ 
and,  in  that  case,  the  damages  would  be  the  differ- 
ence between  the  real  value  of  the  property,  at  the 
time  of  the  sale,  and  the  amount  paid,  or  agreed  to 
be  paid.'  If  he  sues  for  a  breach  of  warranty  he  af- 
firms the  contract,  and  thereby  admits  his  liability  for 
the  agreed  price,  less  the  damages  caused  him  by  the 
breach  of  warranty.*^ 

Where  there  is  an  express  warranty,  an  acceptance 
of  the  goods,  after  opportunity  to  examine  them,  does 
not  preclude  the  vendee  from  claiming  and  recover- 
ing damages  for  breach  of  the  warranty,"  even  though 
a  portion  of  the  goods  may  have  been  used  by  the 
vendee  after  discovering  the  breach  of  warranty.* 
And  if  the  action  for  damages  foi  breach  of  warranty 
is  brought  within  a  reasonable  time,  the  vendor  can 
not  defend  on  the  ground  that  the  bills  for  the  goods 
bore  a  notice  requiring  all  claims  for  damages  to  be 
made  immediately.^  The  vendee  can  maintain  an  ac- 
tion for  breach  of  warranty,  although,  after  discover- 


118  •  Conditional  Sales. 

ing  the  breach,  he  paid  the  agreed  price.^°  Nor  will 
the  vendee  be  deprived  of  his  right  of  action,  though 
a  negotiable  note,  then  unpaid,  was  given  for  the  price 
of  the  goods  purchased. ^^ 

In  order  that  an  action  may  be  maintained  for  a 
breach  of  a  covenant  of  warranty  of  the  title  to  a 
chattel,  the  vendee  need  not  have  waited  to  be  actu- 
ally dispossessed.  It  is  enough,  if  he  could  not  have 
withheld  the  owner  of  the  paramount  title  without 
becoming  a  wrong-doer.^- 

And  if  the  true  owner  sues,  and  recovers  judgment 
against  the  vendee  for  converting  the  property,  the 
latter  may  recover  on  the  covenant  of  warranty,  with- 
out paying  the  judgment.^^ 

(1)  Bradford  v.  Manly,  13  Mass.  139;  Conner  v.  Henderson,  15  Mass. 
319;  Martin  v.  How,  2  Treadw.  (S   C.)  Const.  750. 

(2)  Burge  v.  Strob^rg,  42  Ga.  S9. 

(3)  Conner  v.  Henderson,  15  Mass.  319;  Warren  v.  Wheeler,  1  D. 
Chip.  (Vt.)  159;  Wharton  v.  O'Hara,  2  Nott.  &  M.  (S.  C.)  65. 

(4)  Lewis  V.  Rountree,  78  N.  C.  323;  Martin  v.  Maxwell,  18  Mo.  App. 
176;  Gatling  v.  Newell,  9  Ind.  572;  House  v.  Foster,  4  Blackf.  (Ind.) 
293. 

(5)  Beresford  v.  McCume,  1  Sup.  Ct.  R.  50. 

(6)  Weybrich  v.  Harris,  31  Kan,  92. 

(7)  Kent  v.  Friedman,  101  N.  Y.  616. 

(8)  Poland  v.  Miller,  95  Ind.  387;  s.  c,  48  Am.  Rep.  730. 

(9)  Beanev.  Tinkham,  14  R.  1.  ]',)7. 

(10)  Nauman  v.  Overlee,  (Mo,)  3  8.  VV.  Rep.  380;  Ottowa  Bottle  and 
Flint  Glass  Co.  v.  Gunther,  31  Fed.  Rep.  208. 

(11)  Thorenson  v.  Minneapolis  Harvester  Works,  29  Minn.  341; 
Wigtins  V.  Hunter,  Harp.  (S.  C.)  80. 

(12)  Cahill  V.  Smith,  101  N.  Y.  355. 

(13)  Hersey  v.  Long,  30  Minn.  114. 

§  60.  When  Action  Does  Not  Lie  for  Breach.  A  rea- 
sonable compliance  with  the  conditions  precedent,  in 
a  contract  of  warranty,  is  essential,  before  it  can  be 
enforced  against  the  warrantor;'  and  if,  in  the  action 
upon  a  warranty,  one  party  thereto  affirms  the  exist- 
ence  of  the  warranty,  and  the  other  denies  it,  thei-e  be- 


Incidents —  Warranties.  119 

ing  no  other  evidence,  the  action  must  fail.-  Nor  can 
relief  be  ibund  in  an  equity  action,  for,  in  the  absence 
of  fraud,  chancery  has  no  jurisdiction  to  decree  relief 
on  ;i  warranty.'^ 

Where  a  purchaser  of  goods,  which  were  war- 
ranted, but  which  proved  to  be  of  an  inferior  quality, 
gives  no  notice  to  the  vendor,  but  sells  the  goods  at  a 
reduced  price,  he  thereby  elects  to  abide  by  the  con- 
tract, and  is  deprived  of  his  remedy  against  the  ven- 
dor to  recover  the  difference  in  price."* 

If  the  contract  be  for  the  purchase  of  machinery, 
with  a  warranty  that  it  is  in  perfect  order,  and  the 
vendee  puts  it  in  operation  with  full  knowledge  that 
it  is  defective,  he  is  not  entitled  to  recover  damages 
for  the  breach  of  warranty.^  And  if  the  vendee  had 
directeol  how  a  machine  should  be  constructed,  the 
vendor  is  not  liable  for  its  defective  operation.^  Xor 
is  he  liable  for  the  want  of  parts  of  the  machine, 
which  the  vendee  undertook  to  furnish  himself  if 
needed.  Where  the  sale  is  with  a  warranty  that  the 
article  would  not  break  in  a  year,  and  if  it  did,  the 
warrantor  would  remake  it,  no  action  can  be  main- 
tained upon  the  warranty  without  notice  of  breakage 
and  neglect  to  remake.^ 

An  action  will  not  lie  oil  an  express  parol  warranty 
of  soundness,  where  the  vendee  takes  a  written  war- 
ranty of  title,  omitting  the  warranty  of  soundness.^ 
For  there  can  be  no  action  on  a  parol  warranty  of  any 
kind,  where  there  is  a  bill  of  sale  oi  agreement  in 
writing  respecting  the  sale.^  Nor  can  an  action  be 
maintained  on  a  warranty  made  after  the  contract  of 
sale  had  been  entered  into,^°  unless  there  be  a  new 
consideration  to  support  the  warranty. 

(1)  Nichols  V.  Hail,  4  Neb.  210. 

(2)  Kaines  v.  Totman,  64  How.  (N.  Y.)  Vv.  493. 


120  Conditional  Sales. 

(3)  Sypert  V.  Sawyer,  7  Humph.  (Tenn.)  413. 

(4)  Hutter  v.  Blake,  2  Har.  &  J.  (Md.)  353. 

(5)  Xye  V.  Iowa  City  Alcohol  Works,  51  Iowa,  129. 

(6)  Archdale  v.  Moore,  19  111.  5G5. 

(7)  Hill  V.  Bannister,  8  Cow.  31. 

(8)  Wood  V.  Ashe,  1  Strobh.  (S.  C.)  407;  Mumford  v.  McPherson,  1 
Johns  (N.  Y.)  414;   Wilson  v.  Marsh,  1  Johns.  (N.  Y.)  533. 

(9)  Mumford  u.  McPherson,  1  Johns.  (N.  Y.)414;  Wilson  v.  Marsh, 
1  Johns.  (N.  Y.)503. 

(1(»)  Erwin  v.  Burke,  3  Murph.  241.  i 

§  61.  Measure  of  Damages.  In  an  action  for  breach 
of  warranty,  the  measure  of  damages  is  the  diiference 
between  the  value  of  tlie  article  as  represented  and  as 
it  actually  proves  to  be,  and  the  purchase  price  is 
prima  facie  its  value  as  warranted.^  And  a  vendee 
who  accepts  and  uses  an  article,  purchased  with  a 
warranty,  does  not  thereby  waive  his  right  of  action 
for  damages,  but  is  entitled  to  recover  for  the  breach 
of  warranty  the  difference  between  the  values  of  the 
goods  in  their  damaged  and  undamaged  condition.^ 
If,  however,  the  vendee  elect  to  rescind  the  sale,  on 
the  failure  of  the  vendor  to  pay  back  the  purchase- 
money,  after  due  notice  of  the  non-acceptance  of  the 
goods  as  not  being  of  the  quality  warranted,  he  may 
resell  the  goods,  and  recover  of  the  vendor  the  loss 
upon  the  resale  and  all  proper  expenses,  but  not  for 
the  loss  of  a  good  bargain.^  If  the  action  is  for  a 
breach  of  warranty  of  title,  express  or  implied,  dam- 
ages can  only  be  recovered  for  the  actual  loss.* 

No  special  form  of  pleading  seems  to  be  necessary, 
and  a  general  allegation  of  damages  is  sufficient  to 
admit  proof  of  general  damages,  or  such  as  neces- 
sarily accrue  from  the  breach  of  warranty.^  If  the 
action  be  for  the  breach  of  warranty  in  the  sale  of  a 
machine,  all  evidence  of  what  it  would  cost  to  supply 
the  defect  in  the  machine  is  admissible,*^  and  the  ex- 
penses of  the  vendee  in  trying  to  make  it  work  are 


Incidents — Warranties.  121 

recovenible  as  damages.^  Inaction  for  damage  by 
reason  of  the  purchase  and  sowing  of  plantain  seed, 
upon  the  representation  tliat  it  was  clover  seed,  the 
measure  of  damages  would  be  the  dilfcrence  in  value 
of  the  seed,  and  the  injury  to  the  land  by  the  sow- 
ing. "^  Prospective  profits  can  never  be  considered,^ 
but  where  there  was  a  failure  of  crop  owing  to  the 
worthless  character  of  seed  sold  with  a  warranty,  ex- 
penses in  preparing  the  seed  for  planting  and  sowing 
have  been  recovered  in  addition  to  the  price  of  the 
seed/" 

In  the  absence  of  fraud,  or  bad  faith,  the  proper 
measure  of  damages,  in  a  suit  by  the  vendee  of  a 
safe,  against  the  makers,  who  warranted  it  "  burglar 
proof,"  is  the  difference  between  the  value  of  the  safe 
as  it  Avas,  and  what  it  would  have  been  worth  if  it  had 
been  as  represented ;  and  not  the  damages  sustained 
•in  the    loss  of  valuables   taken    out  of  the  safe  by 
burglars,  who  effected  an  entrance  into  it.     To  con- 
stitute a  fraud,  in  such  case,  which  will  authorize  re- 
covery for  the  value  of  articles  lost,  there  must  be 
something   more  than  mere   assertion  that  the  safe 
was  burglar  proof,  there  must  have  been  an  assertion 
as  a  fact  of  that  which  the  seller  knew  to  be  fjilse  ;  or 
a  reckless  affirmation  that  the  safe  was  burglar  proof, 
whether  the  assertion  was  true  or  false  ;  or  a  knowl- 
edge on  the  part  of  the  vendor  that  the  safe  was  not 
burglar   proof,  and  a  failure   to   communicate   that 
knowledge,  when  the  vendor  knew  that  the  vendee 
was  contracting  for  the  safe  as  burglar  proof,  and  the 
vendee,  trusting  to  those  representations,  must  have 
been   deceived  by  them.     When,  in  such  case,  the 
sale  was  made  by  an  agent,  and  the  suit  is  against 
the  principal,  damages   resulting   from    the  loss  of 
valuables  in  the  safe  can  not  be  recovered,  unless  it 


122  Conditional  Sales. 

be  shown   that   he  was  a  guilty  participant  in  the 
asrent's  fraud.^^ 

W^here  material  sold  for  manufacturing  purposes, 
and  warranted  to  be  of  a  certain  quality,  proves,  upon 
manufacture,  to  be  of  a  quality  inferior  to  that  war- 
ranted, the  measure  of  damages  is  the  difference  be. 
tween  the  value  of  the  defective  article,  made  from 
the  defective  material  furnished,  and  the  value  of  the 
article  if  made  from  the  material  as  warranted. ^^ 

(1)  Gibbs  &  Sterritt  Mfg.  Co.  v.  Kaszezyke,  18  111.  App.  6'23;  Minne- 
apolis Harvester  Works  v.  Bomallie,  29  Minn.  373;  Edwards  v.  CoUson, 
5  Lans.  (X.  Y.)  324;  Wells  v.  Setwood,  61  Barb.  (N.  Y.)  238;  Beresford 
V.  McCune,  1  Cin.  S.  C.  (Ohio)  50;  Birdsall  v.  Carter,  11  Neb.  143. 

(2)  Reynolds  v.  Palmer,  21  Fed.  Rep.  433. 

(3)  GiflFord  v.  Betts,  64  N.  C.  62. 

(4)  O'Brien  v.  Jone.s,  91  N.  Y.  193. 

(5)  Meacham  v.  Cooper,  (Minn.)  30  N.  W.  Rep.  669. 

(6)  Wheeler  &  Wilson  Mfg.  Co.  v.  Thompson   33  Kan.  491. 

(7)  Whitehead  <fe  Atherton  Mche.  Co.  v.  Ryder,  139  Mass.  366. 

(8)  Fox  V.  Emerson,  27  Hun  (N.  Y.),  355. 

(9)  Jones  v.  George,  56  Tex.  149;  s.  c,  42  Am.  Rep.  689. 

(10)  Butler  v.  Moore,  68  Ga.  780;  s.  c,  45  Am.  Rep.  508. 

(11)  Herring  V.  Skaggs,  62  Ala.  180. 

(12)  Park  v.  Morris  &  Co.,  41  How.  (N.  Y.)  Pr.  18. 

Article  14. — Special  Cases. 
§  62.  Warranties  of  Agricultural  Implements. 

§  62.  Warranties  of  Agricultural  Implements.  No 
class  of  warranties  has  been  so  fruitful  of  litigation 
as  that  of  agricultural  implements ;  so  varied  have 
been  the  rulings  of  the  courts,  that  we  can  not  hope 
to  so  group  them  as  to  arrive  at  a  harmonious  con- 
clusion, and  thus  present  a  resume  of  the  fixed  law 
on  this  subject. 

The  warranty  may  be  oral  or  written,  but,  in  al- 
most every  case,  the  warranty  is  printed  on  the  back 
of,  or  otherwise  made  a  part  of,  the  contract  of  sale. 
If  printed  on  the  back  pf  the  contract  of  sale,  or  or- 


IneichmfK —  Worraufiest.  123 

der,  it  becomes  .-i  part  of  tlie  contnict  of  sale,  even 
though  the  blanks  are  not  tilled  out,  and  it  is  not 
siiiiied,  except  by  the  printed  name  of  the  vend(jr. 
Even  the  deliverv  bv  an  agent,  authorized  to  make 
sales,  of  a  printed  warranty  of  the  quality  of  a  har- 
vester, with  the  name  of  the  warrantor  printed 
thereon  as  a  signature,  would  be  binding  as  a  war- 
ranty, though,  upon  the  margin  thereof,  there  is  a  con- 
dition printed  that  it  shall  be  void  unless  countersigned 
by  an  agent,  and  no  agent  has  countersigned  it.^ 
But  where  the  contract  of  warranty,  executed  in 
<luplicate,  contains  a  provision  that  no  agent  has  au- 
thority to  change  the  warranty,  it  is  notice  to  the 
vendee  of  a  limitation  upon  the  authority  of  the 
ayents  of  the  vendor,  and  that  thev  can  not  waive  or 
dispense  with  an  ex})ress  condition  of  the  contract.^ 
Where  the  written  warranty  has  been  delivered  and 
accepted,  no  evidence  can-  be  properly  introduced  of 
an  oral  warranty,  either  in  substitution  of,  or  in  ad- 
dition to,  the  written  warranty.*  But  where  the  ven- 
dee, being  unable  to  read,  is  induced  by  the  fraudu- 
lent representations  of  the  vendor's  agent  to  sign  a 
written  order  containing  a  warranty  diifering  from 
an  oral  one  previously  made,  evidence  of  the  oral 
warranty  and  the  agent's  fraudulent  representations 
would  be  competent  as  tending  to  show  that  the 
written  order  never  became  operative  as  a  contract.^ 
The  representations,  by  the  vendor  of  a  threshing 
machine,  that  it  is  a  very  good  machine,  and  will 
do  good  work,  do  not,  however,  amount  to  a  war- 
ranty.'' 

In  an  action  upon  a  warranty  of  a  machine,  the 
vendor  must  show  in  what  particular  the  machine 
failed  to  work."  And  if  the  sale  be  with  a  warranty 
that  if  the  harvester  were   not  as  good  as  another 


1-4  Conditional  Sales. 

specified  kind,  the  vendee  could  "bring  it  back  and 
get  the  money  back,"  ho  can  not  rescind  the  sale 
without  proving  that  it  was  not  so  good,  and  that 
he  had  returned  it,  not  that  he  had  tendered  it,  sub- 
ject to  order.^  Evidence  as  to  how  other  machines 
of  similar  pattern  worked,  is  inadmissible  to  prove 
that  the  one  in  question  worked  as  it  was  warranted.^ 
But  where  the  question  at  issue  is,  whether  or  not  a 
machine  was  defective  in  its  operations  by  reason 
of  a  fault  in  the  plan  or  design  of  its  construction, 
evidence  is  admitted  to  show  that  other  machines, 
exactly  like  that  in  question,  worked  well,  under  the 
same  conditions. ^° 

Where  the  vendor  of  a  harvester  warranted  it  to 
do  as  good  work  as  one  owned  by  the  vendee's 
brother,  and  there  was  nothing  in  the  contract  of 
sale  requiring  the  vendee  to  notify  the  vendor  of  the 
failure  of  the  machine  to  do  good  work,  or  to  return 
it  in  that  event,  the  vendee  was  not  bound  to  return 
it ;  and,  having  notified  the  vendor  that  it  did  not 
work  well,  his  continuing  to  use  it  while  the  vendor 
was  trying  to  repair  it,  did  not  amount  to  an  accept- 
ance ;  and,  the  harvester  failing  to  do  good  work  as 
warranted,  no  liability  attached. ^^  If,  on  a  sale  of 
a  machine,  the  vendor  not  only  warranted  it,  but  ex- 
pressly agreed  that  if  it  failed  to  work  as  warranted, 
he  would  furnish  a  new  one  or  return  the  notes  given 
for  the  purchase-money,  the  vendee  may  elect  to  re- 
scind the  sale,  and  have  his  notes  returned,^^  but  he 
must  notify  the  vendor,  within  a  reasonable  time,  of 
his  election  to  rescind.^"^  If  the  vendee  is  to  have 
one  day  in  which  to  give  the  machine  a  fair  trial,  he 
will  not  escape  liability  on  the  ground  that,  on  the 
day  of  trial,  it  did  not  fulfill  the  warranty,  if  the  evi- 
dence shows  that  he  failed  to  operate  the  machine 


IncidcnfH — Warrnniies.  125 

with  diligence  and  care."  Or,  if  the  cutting  of  five 
acres  of  grain  with  the  machine,  by  the  terms  of  the 
contract,  was  to  be  conclusive  evidence  that  the  war. 
ranty  was  fulfilled,  it  is  not  material  when  it  was 
done.  It  is  sufiicient  to  bind  the  vendee,  even 
though  the  five  acres  were  cut  only  after  two  or  more 
trials,  and  the  vendor  had  been  notified  of  the  fail- 
ure of  the  machine  to  comply  with  the  terms  of  the 
warranty.^^ 

Where  a  machine   is   sold   on  a  conditional  war- 
ranty,   which    expressly    provides    that   the    vendee 
shall  have  a  certain  time  in  which  to  test  the   ma- 
chine, and,  if  it  fails  to  fulfill  the  warranty,  the  ven- 
dee  shall   give   the    vendor   written    notice,   stating 
wherein  it  fails;  the  vendee,  to  avail  himself  of  the 
benefits   of  the  warranty,   must   render   substantial 
compliance  with  the  agreement;  and  if  no  written  or 
actual  notice  was  given,  and  there  was  no  waiver  of 
the   condition,    the   warranty   can    not    be    enforced 
airainst  the  vendor.^"    A  warranty  of  a  self-binding 
harvester  covers  both  the  binding   and  cutting   ap- 
paratus,^^ and  if  the  sale  be  of  a  combined  reaper  and 
mower,  the  vendee  is  not  bound  to  give  notice  of  de- 
fects  until   he   has   tried   it   both   as  a  reaper    and 
mower.^^     Where   the   warranty   provides    that    the 
keeping  of  the  machine  during  harvest,  whether  kept 
in  use  or  not,  without  giving  notice  of  defect,  should 
be  deemed  to  be  conclusive  evidence  that    the   ma- 
chine fills  the  warranty  the  term  "harvest"    means 
the  usual  harvest  season,  and  docs  not  include    the 
time  of  cutting  a  second  crop.^*^    But,  it  api>earing 
that  the  machine  failed  to  work  on  starting  the  first 
season,  that  the  vendee  at  once  gave  notice,  that    the 
vendor  failed  to  put  it  in  order,  that  the  vendee  gave 
notice  of  the  continuing  failure,  and  that  the  vendor 


126  Conditional  Sales. 

tried  again  to  repair  the  machine,  but  failed,  it  was 
held  that  keeping  the  machine  beyond  the  first  season 
was  not  conclusive  evidence  that  it  filled  the  war- 
ranty.^*^  If,  however,  the  testing  time  be  extended,  by 
parol,  the  vendee  must  give  notice  at  the  end  of  the 
extended  time.-^ 

The  condition,  in  a  warranty,  that,  on  discovery 
of  any  defect,  written  notice  should  be  given  the 
vendor,  can  not  be  waived  by  a'n  agreement  by  a  sub- 
agent  of  the  vendor  to  give  the  notice."  Nor  is  oral 
notice  to  an  agent  of  the  vendor,  who  happened  to  be 
in  the  vicinity,  sufficient.'-"  But  a  voluntary  exami- 
nation by  the  vendor's  agent,  and  his  attempt  to  re- 
pair the  defect,-^  and  the  presence  of  vendor's  agent 
when  the  machine  broke  down,  have  each  been 
held  to  be  actual  notice  of  defect,  and  therefore  suffi- 
cient.^^ 

If,  in  addition  to  requiring  the  vendee  to  give  no- 
tice of  the  defect,  the  warranty  requires  him  to 
render  friendly  assistance  in  repairing  or  replacing 
the  defective  part,'-*"'  or  requires  him  to  return  the 
machine,-'  there  must  have  been  a  substantial  com- 
pliance therewith.  But  where  the  vendor  and  his 
agent  reside  and  have  their  places  of  business  in  dif- 
ferent places,  the  warranty  being  silent  as  to  the 
manner  and  place  of  delivery,  in  case  the  machine 
should  be  defective,  the  court  will  not  hold  the  ven- 
dee under  obligations  to  deliver  the  machine  to  the 
vendor  or  his  agent,  at  the  place  of  residence  of 
either.^  If  the  vendee  use  the  machine  nearly  a 
whole  season,"^  or  for  nearly  a  year,'^^  where  the  war- 
ranty was  to  be  in  force  for  that  time,  before  offering 
to  return  it,  he  is  not  entitled  to  rescind  the  contract 
of  sale  on  the  alleged  ground  that  it  did  not  work  as 
warranted.     Or,  if  he  retain  the   machine,  without 


IncidenfH — Warranties.  127 

complaint,  for  any  considerable  length  of  time,  there 
l)eint»:  no  limit  (^f  tiino  provided  in  the  contract,  he 
would  be  estoj)ped  from  rescinding  the  contract,  or 
claiming  damages,  and  would  be  liable  for  the 
price." 

The  vendee  of  a  machine,  who  has  given  his  note 
for  the  price  thereof,  may  recover  against  the  vendor 
for  breach  of  warranty,  although  the  note  is  still  un- 
paid.'^"^  And  the  execution  of  notes,'^  or  the  giving  of 
collateral  security  to  secure  their  payment,'*^  or  part 
payment  of  the  purchase- money,"^'  subsequent  to  de- 
livery and  trial  of  the  machine,  will  not  amount  to  a 
waiver  of  defects  therein,  where  the  vendor  at  the 
time  promised  and  agreed  to  repair  the  machine. 
But  the  execution  of  renewal  notes  for  a  threshing 
machine,  has  been  held  to  be  presumptive  evidence 
of  waiver  of  a  claim  for  damages  for  breach  of  war- 
ranty.'^' If  there  is  an  actually  existing  breach  of  the 
warranty,  the  renewal  of  purchase-money  notes  would 
not  amount  to  a  waiver."^ 

If  the  vendee,  at  the  time  of  the  purchase,  knew 
of  the  defects,'^^  or  examined  the  machine,^"  there  be- 
ing no  fraud  on  the  part  of  the  vendor,  he  can  not 
afterward,  on  account  of  the  breach  of  the  warranty, 
rescind  the  contract  and  return  the  machine,  in  the 
absence  of  any  agreement  to  that  effect. 

In  an  action  for  breach  of  warranty,  the  measure 
of  damages  is  the  difference  between  the  value  or  the 
machine  as  represented  and  as  it  actually  proves  to 
be,  and  the  purchase  price  is  prima  facie  its  value  as 
warranted.'^  The  fact  that  the  vendee  gave  his  note 
in  settlement  for  a  machine,  will  not  affect  the  extent 
of  the  damages,  the  amount  of  damages  not  being 
limited  by  the  price  he  paid,  or  agreed  to  pay,  for  the 
machine.*"     The  expenses  of  reasonable   changes  to 


128  Conditional  Sales. 

make  the  machine  work  may  be  shown,^^  but  the 
vendee  can  not  claim  damages  for  time  and  expenses 
incurred  in  experimenting  with  the  machine  after  it 
proved  defective/^  Iiij^iry  to  vendee's  grain  from 
delay  in  harvesting,  while  he  was  .experimenting  with 
the  machine,  and  trying  to  make  it  work,  are  not 
elements  of  damages.^^  If  the  machine  is  warranted 
to  do  as  good  work  as  other  machines,  evidence  is 
properly  received  showing  a  comparison  between  the 
work  of  other  machines  and  the  one  in  question. 
Evidence  of  the  working  of  the  machine  in  question, 
for  several  harvests,  is  also  admissible  to  show  its 
intrinsic  defects,  and  that,  after  a  thorough  trial,  it 
was  not  as  warranted.^''  In  the  case  of  D.  M.  Os- 
borne &  Co.  V.  Ehrhard,"^'  a  negotiable  promissory 
note,  given  in  settlement  for  a  machine,  was  nego- 
tiated before  maturity,  and  the  machine,  proving  de- 
fective was  returned  to  the  vendor.  The  holder  of 
the  note  brought  suit  thereon,  and  the  vendee,  be- 
lieving that  the  transfer  was  not  bona  fide,  employed 
counsel  to  defend,  but  was  not  successful.  In  his 
subsequent  action  against  the  vendor,  it  was  held 
that  the  defense  against  the  note  was  judicious  and 
apparently  necessary,  and  that  expenses  of  counsel 
were  a  legitimate  consequence  of  the  wrongful  ac- 
tion of  the  vendor,  the  machine  having  been  sold 
upon  the  condition  that  if  it  failed  to  do  good  work, 
and  the  defects  were  not  remedied  by  the  vendor,  the 
vendee's  note  would  be  returned  him  upon  a  return 
of  the  machine. 

(1)  Griet  V.  Cole,  (Mich.)  27  N.  W.  Rep.  579. 

(2)  First  National  Bank  v.  Erickson,  (Neb.)  31  N.  W.  Rep.  387. 

(3)  Furneaux  v.  Esterly,  (Kan.)  13  P.  Rep.  824. 

(4)  Nicholas  V.  Wayman,  (Iowa)  32  N.  W.  Rep.  258;  Sandwich  Mfg. 
Co.  V.  Tindle,  (Iowa),  33  N.  W.  Rpp.  79. 

(5)  Esterly  v.  Eppelsheimer,  (Iowa)  34  N.  W.  Rep.  8-16. 


Incidents —  Warranties,  129 

(6)  Worth  V.  McConnell,  42  Mich.  473. 

(7)  Canton  Bank  v.  McCann,  4  111.  App.  250. 

(8)  Edgorly  v.  Gardner,  9  Neb.  1 30. 

(9)  Osborne  &  Co.  v.  Bell,  (Mich.)  28  N.  W.  Rep.  841;  Murray  v. 
Brooks,  41  Iowa,  451. 

(10)  I'aulson  v.  O.sborne  &  Co.,  (Minn.)  27  \.  W.  Rep.  203. 

(11)  McCormick  Harvesting  Mche.  Co.  v.  Cochran,  (Mich.)  31  N.  W, 
Rep.  561. 

(12)  Turnbull  v.  Seymour,  31  Minn.  196. 

(13)  McCormick  Harvesting  Machinery  Co.  v.  Chesrown,  33  Minn.  32. 

(14)  Fuller  V.  Schroider,  (Neb.)  31  N.  W.  Rep.  109. 

(15)  Bayliss  v.  Hennessey,  54  Iowa,  11. 

(16)  Furneaux  v.  Esterly,  (Kan.)  13  P.  Rep.  824;  McCormick  Har- 
vesting Machinery  Co.  v.  Hays,  89  Ind.  582;  Nicholas  v.  Wayman, 
(Iowa)  32  N.  W.  Rep.  258;  Aultman,  Miller  &  Co.  v.  Stichler,  (Neb.)  31 
N.  W.  Rep.  241 ;  Osborn  v.  Rawson,  47  Mich.  206. 

(17)  Tunnell  v.  Osborne,  31  Minn.  343. 

(18)  McCormick  v.  Bassal,  50  Iowa,  523. 

(19)  Wendall  v.  Osborne,  63  Iowa,  99. 

(20)  Osborne  v.  Marks,  33  Minn.  56. 

(21)  Lewis  V.  Hubbard,  1  Lea.  (Tenn.)  436. 

(22)  Nichols  v.  Larkin,  79  Mo.  264. 

(23)  Nicholas  w.  Knowles,  31  Minn.  489. 

(24)  Flatt  V.  Osborne,  33  Minn.  9S. 

(25)  McCormick  Harvesting  Machine  Co.  v.  Embree,  94  Ind.  85;  Ac- 
ker v.  Kimme,  (Kan.)  15  P.  Rep.  248;  Sandwich  Mfg.  Co.  v.  Trindle 
(Iowa)  33  N.  \V.  Rep.  79. 

(26)  Sandwich  Mfg.  Co.  v.  Feary,  (Neb.)  33  N.  W.  Rep.  485. 

(27)  King  V.  Towsley,  64  Iowa,  75. 

(28)  Sandwich  Mfg.  Co.  v.  Trindle,  (Iowa)  33  N.  W.  Rep.  79. 

(29)  Osborn  v.  Rawson,  47  Mich.  206. 

(30)  Morgan  v.  Thelford,  3  111.  App.  323. 

(31)  Upton  Mfg.  Co.  V.  lluiske,  (Iowa)  29  X.  W.  Rep.  621. 

(32)  Cash  V.  Giles,  3  C.  &  P.  407;  Abbott  v.  Johnson,  2  N.  W.  Rep. 
332;  Nichola  v.  Hail,  4  Neb.  210;  Miller  v.  Nichols,  5  Neb.  478;  Pitts 
Sons  Mfg.  Co.  V.  Sj)itsnogle,  6  N.  W.  Rep.  71  ;  Bayliss  v.  Hennessey,  6  N. 
W.  Rep.  46;  J.  1.  Case  Threshing  Machine  Co.  v.  Vennon,  23  N.  W. 
Rep.  563. 

(33)  Thoreson  v.  Minneapolis  Harvester  Works,  29  Minn.  341. 

(34)  D.  M.  Osborne  &  Co.  v.  Carpenter,  (Minn.)  34  N.  W.  Rep.  163. 

(35)  Aultman,  Taylor  &  Co.  v.  Hefner,  (Tex.)  2  S.  W.  Rep.  861. 

(36)  Courtney  v.  Boswell,  65  Mo.  1 96. 

(37)  Aultman  v.  Wheeler,  49  Iowa,  647. 

(38)  Osborne  &  Co.  v.  Marks,  33  Minn.  56. 

(39)  McCormick  v.  Kelley,  28  Minn.  135. 

9 


130  Conditional  Sales. 

(40)  McCormick  v.  Sarson,  45    N.  Y.  265;    Scranton  v.  Mechanics' 
Trading  Co.,  37  Cal.  130. 

(41)  Minneapolis   Harvester  Works  v.  Bonallie,  29  Minn.  373.     See 
also  §  61,  Measure  of  Damages. 

(42)  Frohreich  v.  Gammon,  28  Minn.  471. 

(43)  Melby  v.  Osborne,  33  Minn.  492. 

(44)  Aultman  v.  Stout,  15  Neb.  586. 

(45)  Wilson  V.  Rudy,  32  Minn.  256. 

(46)  D.  M.  Osborne  &  Co.  v.  Carpenter,  (Minn.)  34  N.  W.  Rep.  163. 

(47)  D.  M.  Osborne  &  Co.  v.  Ehrhard,  (Kan.)  15  P.  Rep.  590. 


INDEX. 


THE   FIGURES   REFER  TO  THE   PAGES.] 


ACCEPTANCE  OF  GOODS,  dxder  thk  Statutes  of  Fraud— 
acceptance  is  essential,  14 
vendee  must  both  accept  and  receive,  14 
there  may  be  an  actual  receipt  without  any  acceptance,  14 
so  there  may  be  an  acceptance  without  any  receipt,  14 
so  long  as  vendee  can,  without  self-contradiction,  declare  that  the 

goods  are  not  to  be  taken  in  fulfillment  of  the  contract,  he  has 

not  acce{>ted  them,  14 
question  not  whether  he  ought  to  accept,  but  whether  he  has  ac- 
cepted, 15 
receipt  of  part  of  the  goods,  15 
or  acceptance  of  actual  control  is  sufficient,  15 
delivery  must  be  witli  intent  of  vesting  right  of  possession,  15 
acceptance  must  also  be  with    intent   to   take  the  possession  as 

owner,  15 
no  act  of  the  vendor  alone  will  satisfy  the  statute,  15 
there  must  be  some  act  of  the  vendee,  15 
mere  delivery  is  not  sufficient,  15 
there  must  be  acceptance  and  receipt,  15 

they  need  not  be  simultaneous  with  the  verbal  contract  of  sale,  15 
sufficient  if  they  take  place  within  a  reasonable  time  afterward,  15 
acceptance  may  be  by  sample,  if  that  taken  diminishes  the  bulk,  15 
not,  if  otherwise,  15 
Constructive  acceptance — 
acceptance  reciuired  by  statute  may  be  constructive,  16 
question  whether  facts  proven  amount  to  a  constructive  acceptance 

is  one  of  fact,  not  of  law,  16 
if  facts  are  not  in  dispute,  it  belongs  to  the  court  to  determine 

their  legal  effect,  16 
acceptance  may  be  inferred  when  vendee  deals  with  the  goods  as 

his  own,  16 
as  taking  possession  of  bill  of  lading,  17 
marking   or  permitting   others   to    mark    goods   with    name    of 

vendee,  17 
acceptance  of  an  order  for  the  goods,  17 
acceptance  of  part  of  the  goods,  17 
although  a  portion  is  still  to  be  manufactured,  17 
but  there  must  be  acts  of  such  a  character  as  to  place  the  goods 

within  the  power  of  the  vendee  as  absolute  owner,  17 
discharging  all  lien  for  the  price,  17  (131) 


132  Index. 

Acceptance  of  goods — Continued. 

delivery  to  common  carrier  would  constitute  a  receipt,  but  not  an 

acceptance,  17 
receipt  and  unpacking  do  not  amount  to  acceptance,  17 
unless  goods  are  kept  an  unreasonable  time,  17 
vendee  must  exercise  his  option  to  receive,  17 
or  have  done  something  to  deprive  him  of  his  option,  17 

ACCEPTANCE— 

not  an  implied  condition,  46 

becomes  a  condition  by  statute  or  contract  only,  46 

conditional  sales  partake  of  nature  of  executory  contracts,  46 

may,  however,  become  complete,  46 

by  performance  of  conditions  necessary  to  vest  title,  46 

unless  it  be  shovpn  such  was  not  intention  of  parties,  46 

ACTS  OF  GOD— 

preventing  performance,  held  to  relieve,  29 

ADMINISTRATORS  OR  EXECUTORS— 

are  legal  representatives  who  can  give  a  valid  title,  4 
no  implied  warranty  of  title  in  sales  by,  89 

AGENTS— 
Payment — . 
can  be  made  to  vendor  or  his  agent,  56 
or  to  one  who  appears  to  be  clothed  with  authority,  56 
each  case  must  depend  on  the  facts  surrounding  the  payment,  56 
payment  to  vendor's  attorney  held  sufficient,  56 
has  authority  to  receive  before  or  after  judgment,  56 
authority  limited  to  receipt  of  money  only,  56 
vendor  may  be  estopped  from  denial  of  agent's  apparent  author- 
ity, 56 
thus  payment  to  clerk  in  vendor's  place  of  business  is  sufficient,  57 
custom  may  regulate,  57 
or  former  dealings,  57 
Warranties  by — 
no  implied  warranty  of  title  in  sales  by  known  agent,  89 
agent  authorized  to  sell  may  warrant,  106 
notwithstanding  private  instruction  unknown  to  vendee,  107 
delivery  of  a  printed  warranty  is  sufficient,  123 
notice  of  defect  can  not  be  waived  by  agreement  of  sub-agent  to 

give  notice,  126 
oral  notice  to  agent  who  happened  to  be  in  vicinity  not  sufiBcient, 

126 
voluntary  examination  by  agent  and  attempt  to  repair  held  to  be 

actual  notice,  126 
presence  of  agent  when  machine  broke  down  held  to  be  actual 
notice,  126 


Index.  133 

Agexts —  Continued. 
Memorandu  m — 

may  be  signed  by  agent,  9,  19,  23 

some  states,  must  be  authorized  in  writing,  9 

brokers  and  auctioneers  are  agents  of  both  parties,  23 
AGRICULTURAL  IMPLEMENTS,  WARRANTIES  OF— 

may  be  oial  or  written,  122 

must  be  made  a  part  of  contract,  122 

if  printed  on  back  of  contract  becomes  a  part  of  contract,  though 
blanks  are  not  filled  out,  123 

and  not  signed  except  by  printed  name  of  vendor,  123 

delivery  by  agent,  authorized  to  make  sales,  of  a  printed  warranty 
not  conntersigned  is  sufficient,  123 

provision  in  contract  executed  in  duplicate,  limiting  authority  of 
agent  to  change  warranty,  is  notice  to  vendee,  123 

written  warranty  liaving  been  delivered  and  accepted,  no  evidence 
of  oral  warranty  can  be  introduced,  123 

either  in  substitution  of  or  in  addition  to  the  written  warranty, 
123 

evidence  of  fraud  competent  to  show  that  written  order  never  be- 
came operative,  123 

representations  that  a  threshing-machine  would  do  good  work  do 
not  amount  to  a  warranty,  12] 

in  action  upon  warranty  vendee  must  show  in  what  i^articular  ma- 
chine failed,  123 

can  not  rescind  without  proving  that  machine  was  not  as  war- 
ranted, 123 

evidence  of  how  other  similar  machines  worked  not  admissible, 
124 

unless  fault  in  plan  or  design  of  construction  be  at  issue,  124 

notice  of  failure  not  necessary  unless  provided  for  in  contract,  124 

notice  is  required  if  contract  provides  for  recission  on  failure  to 
comply  with  warranty,  124 

if  vendee  is  to  have  one  day  in  which  to  give  machine  trial,  evi- 
dence must  show  diligence  and  care  in  operating,  124 

if  cutting  tive  acres  was  to  be  conclusive  evidence  of  fulfillment 
of  warranty,  it  is  not  material  when  done,  125 

if  contract  provide  for  notice  of  failure,  notice  must  be  given,  125 

warranty  of  selfbinder  covers  binding  and   cutting  apparatus,  125 

of  combined  machine  covers  reaping  and  mowing  apparatus,  125 

vendee  not  bound  to  give  notice  of  defect  until  trial  of  both,  125 

keeping  machine  during  harvest  without  notice  of  defect  may  be 
deemed  conclusive  evidence  of  fulfillment,  if  so  provided  in 
contract,  125 

harvest  means  usual  harvest  season,  125 


134  Index. 

Agriccltttral  implements,  Warrant!  ks  op — Continued. 

keeping  machine  after  i.otice  of  defect  is  not  conclusive  evidence 
of  fulfillment,  126 

if  testing  time  be  extended,  notice  of  defect  must  be  given  at  end 
of  extended  time,  126 

notice  can  not  be  waived  by  agreement  of  sub-agent  to  give  the 
notice,  126 

oral  notice  to  agent  who  happened  to  be  in  vicinity  not  sufficient, 
126 

voluntary  examination  by  agent,  and  attempt  to  repair,  he  I  to  be 
actual  notice,  126 

presence  of  agent  when  machine  broke  down  held  to  be  actual 
notice,  126 

if  friendly  assistance  in  repairing  is  by  contract  required  of  ven- 
dee he  must  comply,  126 

if  he  is  to  return  the  defective  machine,  there  must  have  been  a 
substantial  compliance,  126 

keeping  the  machine  beyond  time  limited  will  prevent  rescission, 
126 

there  being  no  limit,  retaining  machine  any  considerable  length 
of  time  will  estop  rescission,  127 

giving  of  note  for  price  of  machine  does  not  prevent  action  for 
breach  of  warranty,  127 

giving  of  notes,  or  collateral  security,  or  part  payment,  will  not 
amount  to  a  waiver  of  defects,  where  vendor  at  time  promises 
to  repair,  127 

but  execution  of  renewal  notes  have  been  held  presumptive  evi- 
dence of  waiver,  127 

if  vendee  examined  machine,  and  knew  of  defects  at  time  of  pur- 
chase, he  can  not  afterward  rescind,  127 

measure  of  damage  is  difference  between  value  of  machine  as 
represented  and  as  it  actually  proves  to  be,  127 

purchase  price  prima  facie  its  value  as  warranted,  127 

though  amount  of  damages  not  limited  by  price,  127 

expenses  of  reasonable  changes  to  make  machine  work  may  be 
shown,  127 

but  not  time  and  expenses  incurred  in  experimenting  after  ma- 
chine proves  defective,  128 

injury  to  grain  by  delay  in  harvesting  not  element  of  damages, 
128 

evidence  of  working  of  machine  for  several  harvests  admissible  to 
show  its  intrinsic  defects,  128 

expenses  of  counsel  may  be  recovered  as  damages,  where  they  are 
a  legitimate  consequence  of  the  vendor's  wrongful  act,  128 
ASSENT  OF  COMPETENT  PARTIES  ESSENTIAL— 

must  be  mutual  and  voluntary,  5 


Index.  135 

Assent  of  compktent  parties  essential — Continued. 
need  not  be  expressed,  5 
may  be  implied,  5 

may  be  by  same  means  as  proposition,  5 
must  be  before  expiration  of  limit,  5 

AVOIDANCE  (JF  CONDITIONS— 

conduct  of  either  party  rendering  him  incapable  of  carrying  out 

the  contract,  would  amount  to  a  breach,  29 
and  other  party  need  not  tender  performance,  29 
acts  of  God  preventing  performance  held  to  relieve,  29 
not,  if  party  engages  unconditionally  by  exj)ress  contract,  29 
contract  to  sell  and  deliver  an  animate  thing  will  be  at  an  end  if 

subject  of  contract  die,  29 
if  within  power  of  vendor  to  perform,  nothing  relieves  except  acts 

of  vendee,  29 
if  goods  perish  without  his  fault,  he  is  excused  from  delivery  on 

the  day  named,  29 

BAILEES— 

are  legal  representatives  who  can  give  a  valid  title,  4 

BANK-NOTES— 

contracts  for  sale  of,  are  within  the  statutes  of  frauds,  12 

BREACH  OF  WARRANTY  AND  RESCISSION— 

latent  defect  which  develops  into  a  serious  injury,  is  a  breach  of 
warranty,  115 

as  in  sale  of  a  soda  fountain  defective  in  construction,  115 

if  article  is  to  be  5et  up  and  operated  in  a  certain  way,  it  must  so 
be  operated,  1 1  f. 

one  seeking  rescission  because  of  fraud  must  offer  to  rescind  on 
discovery,  116 

must  offer  to  retun  the  consideration  or  thing  received,  116 

unless  it  be  worthhss,  116 

and  notify  vendor  of  election  to  rescind,  116 

if  vendee  be   resident  of  foreign  state,  must  give  notice  through 
post-office,  116 

right  to  rescind  ma»^  be  deemed  waived,  116 

keeping  property  ar  unreasonable  time  without  objection  amounts 
to  a  waiver,  1 16 
When  action  lies  for  brack — 

money  may  be  reco\ered,  paid  for  goods  which  prove  to  be  differ- 
ent from  wananty,  if  vendee  offer  to  return,  117 

right  of  action  arise:  irrespective  of  fraud  of  vendor,  117 

if  property  is  of  any  value,  vendee  must  return,  or  offer  to  return 
it,  117 

if  vendee  sues  for  brjach  of  warranty,  he  thereby  affirms  the  con- 
tract, 117 


136  Index. 

Breach  of  warraxtt  and  rescission — Continued, 

acceptance  of  goods  under  an  express  warranty  does  not  preclude 
action  for  breach,  117 

thouirh  a  portion  of  goods  may  have  been  used,  117 

notice  on  bill  requiring  all  claims  for  damages  to  be  made  immedi- 
ately will  not  avail,  107 

payment  of  price  after  discovery  of  defect  will  not  prevent  action 
for  damages,  117,  ILS 

to  maintain  action  for  breach  of  warranty  of  title,  vendee  need 
not  have  waited  to  be  dispossessed,  118 

judgment  against  vendee  for  conversion  of  property  need  not  have 
been  paid  before  action  on  covenant  of  warranty,  118 
When  action  does  not  lie  for  breach — 

reasonable  compliance  with  conditions  precedent,  is  essential,  be- 
fore warranty  can  be  enforced,  118 

chancery  has  no  jurisdiction  to  decree  relief  on  a  warranty,  119 

where  vendee  fails  to  notify  vendor  of  defects,  or  sells  the  goods, 
he  is  deprived  of  his  remedy  against  vendor,  119 

if  vendee  puts  machinery  in  operation,  knowing  it  to  be  de- 
fective, he  is  not  entitled  to  damages,  119 

where  vendee  directs  how  machine  shall  be  constructed,  vendor 
is  not  liable  for  defective  operation,  119 

nor  is  he  liable  for  want  of  parts,  119 

if  warranty  be  for  a  year,  no  action  can  be  maintained  without 
notice  of  breakage  and  failure  to  remake,  119 

no  action  maintainable  upon  parol  warranty  where  there  is  a 
written  one,  119 

nor  upon  a  warranty  made  after  the  contract  of  sale  had  been  en- 
tered into,  119 

without  a  new  consideration  to  support  it,  119 
Measure  of  damages — 

is  difference  between  value  as  warranted  ard  as  it  actually  proves 
to  be,  120 

purchase  price  is  prima  facie  value  as  warranted,  120 

vendee  may  re-sell  and  recover  loss  and  all  proper  expenses,  if 
vendor  refuse  to  rescind,  120 

in  action  for  breach  of  warranty  of  title,  (damages  can  only  be  re- 
covered for  actual  loss,  120 

no  special  form  of  pleading  necessary,  12* 

in  action  for  breacli  of  warranty  in  sale  jf  machine,  evidence  of 
cost  to  supply  defect  is  admissible.  120 

expenses  in  trying  to  make  it  work  are  recoverable,  120 

in  case  of  sale  of  plantain  seed  for  «lover  seed,  measure  of 
damages  would  be  diflFerence  in  valm  of  seed  and  injury  to 
land,  121 

prospective  profits  can  never  be  considerd,  121 


Index.  137 

Breach  of  warranty  and  rescission — Continued. 

expenses  in  preparing  seed  for  sowing  have  been  recovered,  121 

rule  in  sale  of  burglar-proof  safes,  121 

in  sale  of  materiiil  for  niMiuifacturing  purposes,  difforenco  between 

value  of  defective  article  and  value  if  made  from  the  material 

as  warranted,  is  measure  of  damages,  122 

CARRIER,  DELIVERY  TO— 

is  sufficient,  carrier  being  regarded  as  agent  of  vendee,  30 

goods  so  delivered  must  be  in   proper  condition,  36 

so  that  in  case  of  damage  action  may  be  maintained  again-t  the 

carrier,  36 
vendor  is  bound  to  insure,  if  so  instructed,  36 
or  if  such  has  been  the  usage  between  the  parties,  36 
delivery  to  designated  carrier  is  delivery  to  vendee,  36 
if  shipment  be  by  a  route  other  than  the  one  designated,  delivery 

is  not  complete,  36 

CHECK  OR  DRAFT— 

payment  by   is  a  mode  of   making  cash  payment,  and   is   con- 
ditional, 30 
CHOSES  IN  ACTION— 

contracts  for  sale  of  not  within  the  statute  of  frauds,  1 1 
CONDITIONS  PRECEDENT  TO  BE  PERFORMED  BY  VENDOR— 
Intent  governs — 

there   may   be   conditions   to   be   performed    before    transfer   of 

title,  27 
must  be  complied  with  or  waived,  27 

may  be  a  condition  to  be  performed  either  precedent  or  subse- 
quent to  delivery,  27 
whether  a  delivery  be  absolute  or  conditional  depends  on  the  in- 
tent of  the  parties,  27 
conditions  need  not  be  declared  in   express  terms  at  time  of  de- 
livery, 27 
.   sufficient  if  intent  can  be  inferred,  27 

conditions  may  be  expressed  or  implied,  27 
Conditions  must  be  performed — 
conditions  precedent  must  be  fully  and  strictly  performed,  27 
may  be  dependent  for  fulfillment  either  on  the  vendor  or  ven- 
dee, 27 
may  refer  to  the  articles  the  subject  of  contract,  28 
or  the  consideration  to  be  paid  therefor.  28 
Rules  governing — 

as  formulated  by  Lord  Blackburn,  28 

if  vendor  is  to  do  any  thing   to  put  goods  in  a  deliverable  state,  it 

is  a  condition  precedent,  2S 
vendee  may  waive  conditions,  28 
thereupon  liability  becomes  fixed.  28 


138  Index. 

CONPITIONS  PRECEDKNT  TO  BE  PERFORMKD  BY  VKNDOR — Continued. 

Avoidance  of  conditions — 

conduct  of  either  party  rendering  him  incui)able  of  carrying  out 

the  contract,  it  would  be  a  breach,  29 
and  other  party  need  not  tender  performance,  29 
acts  of  God  preventing  performance  held  to  relieve,  29 
not  if  party  engages  unconditionally  by  express  contract,  29 
contract  to  sell  and  deliver  an  animate  thing,  will  be  at  an  end  if 

subject  of  contract  die,  29 
if  within  power  of  vendor  to  perform,  nothing  relieves  except  acts 

of  vendee,  29 
if  goods  perish  without  his  fault,  he  is  excused  irom  delivery  on 
the  day  named  29 
Deliverable  state,  cohditions  necessary/  to  put  in — 
Separation — 

sales  by  number,  weight  or  measure,  not  complete  until  quantity 

is  ascertained,  30 
if  mixed  with  others,  not  until  separated,  30 
that  portion  separated  becomes  property  of  vendee,  30 
no  difference  whether  contract  i;  an  entirety  or  not,  30 
if  in  separation  property  deteriorates,  through  fault  of  vendor, 

vendee  not  bound  to  receive  it,  30 
in  a  contract  to  manufacture  goods  and  sell  them  to  another,  no 

property  in  material  passes,  30 
although  a  portion  of  the  price  be  paid,  30 
they  must  have  been  finished  and  set  apart  for  the  vendee,  30 
with  his  assent  and  acceptance,  30 
property  having  been  separated,  title  will  pass,  30 
that  being  intent  of  parties,  30 

though    vendor    is     required    to    do    something    in    addition 
thereto,  30 
Measurement — 

where  price  is  determinable  by  measurement,  it  is  presumptively 

a  condition  precedent,  31 
employment  of  a  person  to  do  the  measuring  not  suflBcient,  31 
in  port  of  New  York,  purchase  of  grain  governed  by  custom,  31 
employment  of  measurer,  is  a    substantial  compliance   there- 
with, ;-;i 
in  sales  ot  cotton,  not  complete  until  weight  and  value  have  been 

ascertained,  31 
must  be  with  the  concurrence  of  the  vendee,  31 
there  being  no  agreement  therefor,  weighing  not  necessary  to 

constitute  a  delivery,  31 
sales  of  lumber  to  be  taken  and  measured  from  a  large  bulk,  not 
complete,  even    between    parties    until    selected    and    meas- 
ured, 32 


lixiex.  139 

COKDITIOXS  PKECEDENT  TO  BE  PERFOKMED  BY  VENDOR — Continued. 

when  sold  subject  to  measuii  mciit  by  an  inspector,  vendee  may 
insist  on  actual  measurement,  ''>2 

a  mere  estimate  not  sufficient,  32 

where  by  agreement   the  parties  are  to  do  the  measuring,  but 
disagree,  title  does  not  pass,  32 

though  sale  be  of  an  entire  lot,  32 

when  all  is  sold,  no  such  process  is  needed  to  pass  title,  32 

not  necessary  in  sale  of  barrel  staves,  32 
Delivery — 

Question  of  intent — 

whether  delivery  be  absolute  or  conditional,  a  question   of  in- 
tent 33 

intent  a  question  for  the  jury,  33 

evidence  may  justify  a  determination  by  the  court,  33 

law  implies  place  of  delivery  is  at  the  place  where  the  property 
is,  at  time  of  sale,  33 

different  rule  prevails  where  time  and  place  of  delivery  is  pro- 
vided by  contract  34 

time  of  delivery  not  being  fixed  by  contract,  must  be  within  a 
reasonable  time  34 
Symbolical  or  construrtiih:  delivery — 

rule  formulated  by  Lord  EUenborough,  34 

where  goods  are  ponderous,  delivery  may  be,  34 

each  case  dependent  upon  nature  and  situation  of  property.  35 

delivery  of  deed  of  transfer  of  ship  at  sea  passes  title,  35 

cargo  may  be  transferred  by  bill  of  lading  or  invoice,  35 

in  each  case  must  be  with  intent  to  transfer  the  title,  35 
Delivery  to  carrier — 

is  sufficient,  carrier  being  regarded  as  agent  of  vendee,  36 

goods  so  delivered  must  be  in  proper  condition,  36 

so  that  in  case  of  damage,  action   may  be  maintained  against  the 

carrier,  36 
vendor  is  bound  to  insure  if  so  instructed,  36 
or  such  has  been  the  usage  between  the  parties,  36 
delivery  to  designated  carrier,  is  delivery  to  vendee,  36 
if  shipment  by  a  route  other  than  the  one  designated,  delivery  is 

not  complete.  36 
Delivery  of  more  or  less  than  contracted  for — 
vendor  does  not  comply  with  contract  by,  37 
or  by  delivery  of  goods  sold,  mixed  with  other  goods,  37 
if  so  delivered,  may  be  held  subject  to  order,  37 
if  delivered  in  an  essentially  altered  condition,  contract  will  not 

have  been  complied  with,  37 
where  goods  are  ordered  from  correspondent  or  purchasing  agent. 

rule  is  less  rigid,  37 


140  Index. 

Condition's  precedent  to  be  performed  bt  a'endor — Continued. 

vendee  may  refuse  to  receive  if  goods  tendered,  either  exceed  or 

are  less  in  quantity  than  agreed  upon,  37 
is  bound  to  pay  for  any  part  accepted,  37 

moderate  and  reasonable  latitude  in  performance  allowed  if  words 
of  qualification  are  used,  such  as  "about,"  or  "more  or  less,"  38 
Time  of  delivery — 
where  contract  expresses  the  time  of  delivery,  it  is  a  question  of 

construction  for  the  court,  38 
month  is  constrvied  as  a  calendar  month,  38 
unless  contrary  meaning  clearly  indicated,  38 
certain  number  of  days,  construed  as  consecutive,  39 
Sundays  included,  39 

day  of  making  contract  should  be  excluded  in  computing  time,  39 
between  two  days  includes  the  last  day,  39 
readiness  at  time  and  place  designated  held  sufficient,  39 
place  not  being  designated,  tender  a  convenient  time  before  mid- 
night sufficient,  39 
place  being  designated,  tender  must  be  by  daylight,  and  a  conveni- 
ent time  before  sunset,  39 
contract  to  deliver  "  as  fast  as  produced,"  construed,  39 
"prompt  shipment,"  construed,  39 

contract  to  ship  within  "  certain  specified  months,"  construed,  40 
delivery  and  acceptance  after  the  agreed  time  does  not  of  itself 

work  a  reduction  of  price,  40 
if  notes  are  given  for  goods  to  be  delivered  at  a  future  day.  a  fail- 
ure to  so  deliver  will  constitute  a  failure  of  consideration,  40 
Place  of  delivery — 

delivery  must  be  at  place  designated  by  contract,  41 

unless  it  becomes  impossible  through  act  of  vendee,  41 

delivery  at  time  and  place  sufficient,  41 

acceptance  by  vendee  need  not  be  shown,  41 

vendor  may  re-sell,  after  due  delay,  if  vendee  unreasonably  neglect 

or  refuse  to  receive  the  goods,  41 
and  recover  deficit  in  price  from  vendee,  41 
common  in  such  case  to  sell  at  auction,  41 
but  it  is  not  necessary,  41 
Estoppel,  delivery  by — 

rule  formulated  by  Lord  Blackburn,  42 

vendor's  conduct  may  estop  him  from  denying  the  transfer,  42 

as  allowing  another  to  contract  on  the  faith  or  understanding  of 

some  fact  which  he  can  contradict,  42 
allowing  vendee  to  hold  himself  out  as  owner,  42 
special  cases  cited,  42 
Delivery  of  described  article  essential — 
delivery  of  described  article,  a  condition  precedent,  43 


Index.  141 

CJOXDITIONS  PRECKDENT  TO  BE  PERFORMKD  HT  VENDOR Continued. 

if  not  i)orfornned,  vomlei^  may  i-ijfot  the  article,  43 

may  recover  the  price,  if  paid  lor,  43 

rule  formulated  by  Lord  AV)inj.'er,  4;j 

veords  of  description  constitute  a  warranty,  44 

doctrine  questioned,  44 

vendor  undertakes,  that  the  thing  delivered  corresponds  to  the 

description,  44 
an  article  of  the  species,  kind  and  quality  thus   expressed  in  the 

contract  of  sale,  44 
sufficient  if  goods  are  in  specie,  that  for  which  sold,  44 
and  merchantable  under  denomination  aflSxed  to  them,  44 
goods  not  answering  description,  vendee  must  oflFer  to  return,  44 
offer  to  return  must  be  unconditional,  44 

delay  in   offering  to  return,  or  any  act  equivalent  to  acceptance, 
employment,  or  disposition  of  the  goods,  after  knowledge  of  de- 
ficiency, construed,  44 
:ONDITI(^NS  PRECEDENT  TO  BE  PERFORMED  BY  VENDEE— 
Implied  condUio)is — 
Accept  anre — 

not  an  implied  condition,  46 

becomes  a  condition  by  statute  or  contract  only,  46 
conditional  sales  partake  of  nature  of  executory  contracts,  46 
may,  however,  become  complete,  46 

by  performance  of  conditions  necessary  to  vest  title,  46 
unless  it  be  shown  such  was  not  intention  of  parties,  46 
Payment  a  condition  precedent — 
unless  otherwise  expressed,  payment  is  an  implied  condition,  47 
delivery  and  payment  presumed   to  be  simultaneous  and  con- 
current, 47 
delivery,  with  expectation  of  immediate  payment,  is  not  abso- 
lute, 47 
title  does  not  vest  until  price  is  paid,  47 

at  common  law,  vendee  can  not  delay  payment  until  demand,  47 
must  pay  as  soon  as  due,  47 

vfhere  price  is  made  payable  only  after  demand,  a  reasonable 
time  must  be  allowed  to  make  payment,  47 

payment  by  check  being  refused,  it  is  not  unreasonable  delay 
for  vendee  to  offer  payment  in  money  on  morning  of  next 
banking  day,  47 
payment  made  by  mode  requested  by  vendor  discharges  vendee, 

47 
if  made  by  mail,  it  is  at  vendee's  risk,  47 
unless  vendor  direct  or  assent  to  that  mode  of  payment,  47 
assent  of  vendee  may  be  implied,  47 
form  conduct  or  usual  course  of  business,  47 


142  Index. 

Conditions  preceden'T  to  be  pekfoumei)  by  a'en'dee — Continued. 
Cash  pai/mrnt — 

may  be  express  or  implied  condition,  48 

is  a  condition  precedent,  48 

until  performed,  property  does  not  vest  in  vendee,  48 

delivery  may  be  accompanied  or  followed  by  terms,  48 

if  delivery  is  unconditional,  title  vests,  48 

c.  o  d   manifests  vendor's  intention  to  control  jus  diaponendi,  48 

time  in  which  to  pay  the  cash  may  be  varied  by  custom,  49 

assignment  prior  to  payment,  prevents  performance,  and  no  title 
vests,  49 

assignee  takes  no  better  title  than  vendee  had,  49 

vendee  may  recover  goods  if  guilty  of  no  laches,  49 

even  from  one  who  has  purchased  in  good  faith  and  without  no- 
tice, 49 

rule  questioned  in  New  York,  49 

there,  purchasers  from  conditional  vendee  acquire  a  good  title,  49 

vendee  having  been  allowed  to  assume  position  of  owner,  49 

but  no  title  can  be  acquired  where  contract  partakes  of  bailment 
with  executory  agreement  for  purchase,  condition  not  having 
been  performed,  49 
Payment  by  check  or  draft — 

is  a  mode  of  making  cash  payment,  50 

is  not  the  acceptance  of  a  security,  50 

such  payment  is  conditional,  50 

if  check  is  dishonored,  vendor  may  retake  the  goods,  50 

check  will  operate  as  absolute  payment,  if  presentment  is  de- 
layed to  the  injury  of  drawer,  50 

if  payment  be  by  check,  indorsed  by  vendee,  acceptance  thereof 
releases  vendee,  except  as  indorser,  50 

payment  by  draft  is  also  conditional,  50 

burden  on  vendee  to  prove  an  agreement  to  receive  as  absolute 
payment,  51 

fraud  of  one  partner  to  induce  vendor  to  receive  his  individual 
acceptance  will  not  release  other  partner,  51 

where  payment  is  by  exchange,  vendee  not  rendered  liable  by 
unexpected  failure  of  bank,  51 

if  he  has  exercised  care  in  purchasing  bill  of  exchang-^,  51 
Payment  b>i  note — 

if  provided  by  contract,  becomes  a  condition  precedent,  52 

title  will  not  vest  without  such  payment,  52 

or  its  waiver  by  the  vendor,  52 

giving  of  note  does  not  extinguish  indebtedness,  52 

an  intent  to  extinguish  must  be  shown,  52 

intent  may  be  expressed  or  implied,  52 

if  note  is  to   be    indorsed,  the    taking   of  it   without  will  not 
amount  to  a  waiver  of  condition,  52 


Index  143 

Conditions  prkcedent  td  be  peufdrmkd  by  vendee — Continued. 

if  note  bo  indorspd  l)y  vemleH,  and  given  as  collateral  security, 
laches  of  vendor  will  constitute  the  note  as  absolute  pay- 
ment   ")2 

payment  by  paper  to  which  vendee  is  not  a  party,  is  equivalent 
of  cash  payment,  i)'l 

if  securities  thus  passed  were  forged,  vendor  could  rescind  sale 
for  failure  of  consideration,  53 

if  genuine,  though  known  to  vendee  to  be  vyorthless,  sale  could 
be  rescinded,  .03 

if  worthless  character  is  unknown  to  both,  it  would  be  a  case 
of  mutual  mistake,  •")3 

purchase  by  agent  for  an  unknown  principal,  tender  of  agent's 
note  does  not  release  principal,  53 

if  payment  be  by  partnership  note,  and  one  repudiates  his  lia- 
bility thereon,  it  can  not  then  be  regarded  as  payment,  53 

if  by  mistake  note  is  given  for  less  amount  than  due,  title  does 
not  pass,  53 

delivery  having  been  made  without  demand  of  notes  within  a 
reasonable  time,  title  passes,  53 
Tender — 

if  proper,  is  equivalent  to  payment,  54 

requires  a  production  and  oflfer  to  vendor  of  an  amount  of  money 
equal  to  price  54 

production  of  money  may  be  dispensed  with  by  vendor,  54 

the  mere  offer  to  pay  does  not  amount  to,  54 

if  vendee  is  prevented  from  producing  the  money  by  the  con- 
trivance or  evasion  of  vendor,  it  will  be  a  sufficient  excuse,  54 

tender  of  larger  sum  than  due,  with  demand  for  change,  is  not 
good,  54 

nor  of  a  part  of  the  sum  due,  55 

may  tender  {)ayment  of  one  or  more  of  several  distinct  pur- 
chases, 55 

may  tender  gross  amount  of  several  demands,  55 

tender  of  balance  due,  after  deducting  set-off,  not  good,  55 

may  pay  entire  sum  due  into  court,  and  then  plead  a  set-ofif,  55 

oflfer  of  a  promissory  note  signed  by  vendor  is  not  a  good  ten- 
der, 55 

tender  must  be  an  unconditional  offer  of  money,  55 

vendee  has  no  right  to  insist  that  vendor  shall  admit  that  no 
more  is  due,  55 
To  whom  payment  can  be  made — 

can  be  made  to  vendor  or  his  agent,  56 

or  to  one  who  appears  to  be  clothed  with  authority,  56 

each  case  must  depend  on  the  facts  surrounding  the  payment,  56 

payment  to  vendor's  attorney  held  sufficient,  56 

has  authority  to  receive  before  or  after  judgment,  56 


144  Index. 

Condition's  precedent  to  bk  perfokmed  by  vendee — Continued. 

authorit}'^  limited  to  receipt  of  money  only,  ")6 

vendor  may  be  estopped  from  denial  of  agent's  apparent  author- 
ity, 56 

thus,  payment   to  clerk    in  vendor's  place  of  business  is  suflB- 
cient,  57 

custom  may  regulate,  57 

or  former  dealings,  57 
Express  conditions — 

Sales  on  trial  or  approval — 

no  sale  until  approval  is  given,  58 

either  expressly  or  by  implication,  58 

failure  to  retui'n  in  time  specified  makes  sale  absolute,  58 

vendee  is  entitled  to  full  time  agreed  upon  for  trial,  58 

no  time  having  been  agreed  upon,  a  reasonable  time  will  be  pre- 
sumed, 58 

vendee  can  not  avoid  payment  by  failure  to  make  trial,  58 

nor  by  the  exercise  of  an  arbitrary  discretion,  58 

day  for  trial  means  entire  day,  58 

if  trial  involves  consumption  of  what  is  tried,  it  becomes  ques- 
tion for  jury  whether  quantity  consumed  was  more  than  was 
necessary  for  trial,  58 
Memorandum  sales — 

in  mercantile  usage,  have  a  special  significance,  59 

mean  that  goods  are  sent  subject  to  approval,  59 

title  does  not  pass  until  approval,  59 

evidence  of  usage  or  custom  is  competent,  5 

presumed  that  parties  contracted  with  reference  to  it,  59 

acceptance  must  be  in  fact,  59 

by  means  intended  to  be  conveyed  to  the  knowledge  of  vendor,  59- 

accejitance  can  not  be  by  mental  act,  59 

or  conduct  unknown  and  not  communicated  to  the  vendor,  59 

assent  may  be  by  letter  or  telegram,  59 

though  it  is  not  necessary  to  prove  their  receipt  by  vendor,  59 

vendee's  right  to  assent  is  extinguished  if  he  make  an  assign- 
ment or  part  with  the  goods,  59 

delivery  of  goods  before  receipt  terms  is  not  necessarily  a  waiver 
of  the  conditions,  60 

there  may  be  possession  without  conferring  the  right  to  posses- 
sion, 60 
Delivery  vnthout  payment — 

with  exjiress  agreement  that  title  shall  remain  in  vendor  until 
payment,  payment  is  a  condition  precedent,  60 

though  part  of  the  goods  may  have  been  paid  for,  60 

vendee  can  convey  no  title  by  sale,  60 

goods  may  be  recovered  though  in  hands  of  innocent  vendee,  60 


Index.  145 

Conditions  precedent  to  be  performed  by  vendee — Continued. 

and    property    is   not   subject    to   seizure   by   creditors    of    the 

vendee,  60 
until  they  pay  or  tender  to  vendor  amount  due,  00 
tender  of  amount  due  not  sufficient  if  the  property  has  been 

taken  possession  of  Jby  the  vendor,  OO 
vendee  may  have  power  to  sell  portion  of  goods  and  conditions 

still  be  enforcible  against  remainder,  61 
vendor  must  not   have   been  guilty  of  laches  in  asserting  his 

rights,  61 
nor  his  conduct  amount  to  a  waiver  of  performance,  61 
condition  of  payment  not  waived  by  taking  vendee's  note,  61 
delivery  under  condition  that  payment  shall  be  by  note  is  con- 
ditional, 62 
upon  vendee's  refusal  to  give  note,  goods  may  be  replevied,  62 
failure  to  pay  an  installment  on  time  entitles  the  vendor  to  pos- 
session, 62 
where  time  is  essence  of  contract,  62 
commencing  suit  or  issuing  attachment  for  amount  due  does  not 

amount  to  a  waiver  of  vendor's  right  to  retake  the  goods,  62 
forfeiture  is  waived,  if  vendor  makes  a  new  contract,  62 
waiver  of  one  forfeiture  is  not  evidence  of  waiver  of  subsequent 

forfeitures,  62 
mortgage  covering  after  acquired  property  will  not  aflFect  vendor's 

title,  63 
mortgagor  acquires  no  title  until  terms  of  sale  have  been  com- 
plied with,  63 
vendee  has  a  right  to  mortgage,  63 

and  mortgage  will  take  precedence  of  an  attachment,  63 
execution  of  mortgage  is  an  assumption  of  ownership,  63 
vendor  may  repossess  himself  of  chattel  without  refunding  par- 
tial payments,  63 
his  duty  is  to  notify  vendee  of  his  claim,  63 
but  right  of  vendor  to  retake  does  not  confer  upon  vendee  the 

right  to  return  the  property,  63 
conditional  contracts  of  sale  not^er  se  fraudulent,  63 
secret  liens  are  constructively  fraudulent  as  to  creditors,  64 
conditional  sales  may  be  modified  so  as  to  make  the  contract  a 
mortgage,  64 
Special  cases — 

stock,  conditional  sales  of,  do  not  cover  increase  accruing  before 

performance  of  condition,  05 
belongs  to  vendor,  65 

need  not  be  mentioned  in  memorandum,  05 
to  protect  vendor's  title  to  increase,  even  against  a  bona  Jide  pur- 
chaser, 65 
10 


146  Index. 

Conditions  precedekt  to  be  performed  by  vendee — Continued. 

team  of  horses,  conditional  sales  of,  sustained,  65 

reapers  and  mowers,  conditional  sales  of,  sustained,  66 

threshing  machines,  conditional  sales  of,  sustained,  66 

conditions  may  be  embodied  in  note,  66 

portable  eyigines  and  saw-mills,  conditional  sales  of,  sustained,  66 

if  notes  contain  provision  authorizing  vendor  to  declare  them 
due  upon  the  happening  of  some  event,  they  are  not  negotia- 
ble, 67 

safes,  conditional  sales  of,  sustained,  67 

sewing  machines,  conditional  sales  of,  sustained,  68 

rights  of  vendor  not  affected  by  replevin  of  machine,  68 

this  class  of  sales  are  neither  chattel  mortgages  nor  bailments,  68 

machine  being  voluntarily  given  up,  vendee  has  no  right  of 
action,  68 

pianos,  conditional  sales  of,  sustained,  68 

vendor  has  no  right  of  action  for  price,  68 

remedy  is  to  retake  piano,  68 

where  vendee  is  allowed  to  assume  apparent  ownership,  burden 
is  on  party  claiming  adversely  to  show  non-fulfillment  of  con- 
ditions of  sale,  68 

organs,  conditional  sales  of,  sustained,  68 

furniture,  conditional  sales  of,  sustained  in  every  state  but  Penn- 
sylvania, 69 

vendor  not  authorized  to  enter  home  of  vendee  in  his  absence, 
without  his  consent,  and  without  notice  take  the  furniture,  69 
Railroad  equipment — 

first  leading  case  on  the  subject,  70 

opinion  by  Mr.  Chief-Justice  Waite,  70 

conditional  sales  of,  sustained,  70 

not  covered  by  mortgage  of  property  company  then  owned  or 
might  thereafter  acquire,  72-75 

mortgagees  take  just  such  an  interest  in  the  property  as  mort- 
gagor acquired — no  more,  no  less,  72-75 

rule  not  applicable  in  case  of  property  becoming  affixed  to  and 
part  of  railroad  covered  by  prior  mortgage,  76 

in  Ohio,  subject  provided  for  by  statute,  76 
Statutory  requirements,  77 

only  applicable  to  contracts  containing  express  conditions  of 
sale,  78 

in  many  states,  to  be  valid  as  against  third  parties,  contract  must 
be  filed  as  chattel  mortgage,  78 

filing  must  be  in  town  or  township  where  vendee  resides,  78 

except  in  New  Hampshire,  Vermont,  and  Nebraska,  where,  if 
vendee  is  a  non-resident,  filing  may  be  at  residence  of 
vendor,  78 

in  Vermont,  such  filing  must  be  within  thirty  days  of  the  sale,  78 


Index.  147 

CJONDITIONS  PRECEDENT  TO  BK  PRRFORMKD  BY  VENDEE — Continued. 

in  New  llampshiro,  time  shortened  to  ten  days,  78 

effect  of  record  will  not  extend  beyond  one  year  in  Wisconsin,  78 

and  five  in  Nebraska,  78 

unless  renewed  from  time  to  time,  78 

contract  good  in  other  states  without  filing,  TS 

only  a  note  or  other  evidence  of  indebtedness  given  is  void 
as  against  creditors  and  subsequent  purchasers  unless  re- 
corded, 79 

in  New  York  and  Minnesota,  record  ceases  to  be  noticed  after 
one  year,  79 

in  New  York,  provisions  of  statute  do  not  apply  to  sales  of 
household  goods,  pianos,  engines,  and  machinery,  79 

if  contract  is  executed  in  duplicate,  79 

in  New  Hampshire,  afhilavit  of  good  faith,  signed  by  both 
parties,  is  required,  79 

foreclosures,  mode  of,  prescribed  in  but  few  states,  79 

in  New  York  and  Vermont,  vendor  may  retake  the  property 
thirty  days  after  condition  broken,  79 

but  in  Maine,  property  is  subject  to  redemption,  79 

in  Missouri  and  Ohio,  it  is  unlawful  for  vendor  to  sieze  the  prop- 
erty without  refunding  a  portion  of  payments,  79 

statutes  not  interpreted  by  courts,  79 

can  only  apply  where  vendor  seeks  to  take  possession  without 
intervention  of  law,  79 

can  not  abridge  remedial  rights,  79 

statutes  not  applicable  in  sales  on  consignment,  80 

nor  sales  to  an  agent  or  sub-agent  of  vendor,  80 

CONDITIONS  SUBSEQUENT— 
Express  conditions — 
Sale  or  return — 

explained  by  queen's  bench,  81 

sale  with  right  to  return  within  reasonable  time,  81 

property  passes   and   action  will   lie  for  price   if  not  returned 

within  a  reasonable  time,  81 
such  is  holding  of  our  courts,  81 
what  is  a  reasonable  time  is  a  question  of  law,  81 
to  be  determined  by  a  view  of  all  the  circumstances  of  the  par- 
ticular case,  81 
parol  evidence  of  conversations  of  the  parlies  is  admissible  to 

show  the  circumstances  under  which  contract  was  made,  81 
whether  vendee  has  terminated  sale  by  a  return  of  the  goods  is 

a  question  of  fact,  81 
if  vendee  materially  impair  the  condition   of  the  chattel,   he 
can  not  take  advantage  of  the  condition  under  which  it  was 
delivered,  82 


148  Index. 

Conditions  subsequent — Continued. 

but  if  injury  be  occasioned  without  the  vendee's  fault,  it  has 
sometimes  been  held  not  to  lose  his  privilege  of  return,  82 
Sale  of  goods  to  arrive — 

can  be  either  an  executed  sale  subject  io  bi»  defeated  by  non-ar- 

I'ival  of  goods,  82 
or  an  executory  contract  to  sell  and  buy,  82 
the  English  cases  do  not  settle  what  language  is  necessary  to 

use,  83 
opinion  in  leading  case  by  Judge  Blackburn,  83 
quantity,  quality,  and  price  having  been  ascertained,  bill  of  lad- 
ing assigned,  there  would  be  a  constructive  delivery,  84 
any  other  act  equivalent  to  assignment  of  bill  of  lading  the  ef- 
fect held  to  be  the  same,  84 
tendency  of  American  cases  is  to  regard  as  conditional  and  ex- 
ecutory, 81 
title  not  passing  until  the  actual  arrival  of  the  goods,  84 
Implied  conditions — 

Shall  he  manujacturer  s  own  make — 
rule  adopted  in  Scotland,  85 
on  sale  of  goods  by  manufacturer  there  is  an  implied  condition 

that  they  shall  be  his  own  make,  85 
purchaser  entitled  to  reject  others,  85 
although  they  are  of  the  quality  contracted  for,  85 
COMPETENT  PARTIES  ESSENTIAL— 

only  the  owner,  his  agent,  or  legal  representatives  can  give  valid 

title,  4 
who  are  legal  representatives,  4 
vendee  acquires  no  better  title  than  his  vendor,  4 
disabilities  render  contract  voidable,  not  void,  4 
may  be  permanent  or  temporary,  4 

married  women  competent  to  contract  in  some  states,  4 
CONSIDERATION— 

price  is  an  element  of  every  valid  sale,  6 

must  be  either  determined  or  determinable,  6 

need  not  be  paid  down,  6 

must  be  an  agreement  to  pay,  6 

law  implies  an  agreement  to  pay  what  the  property  is  reasonably 

worth,  6 
may  be  fixed  by  appraisement,  6 
or  quotations  upon  a  day  to  V)e  fixed,  6 

time  of  payment  may  by  contract  be  determined  by  happening  of 
some  contingency,  6 
CONTINGENCY  OR  POSSIBILITY— 

not  founded  upon  a  right  or  coupled  with  an  interest,  can  not  be 
subject  of  sale,  5 


Index.  149 

CONSTRUCTIVE  ACCEPTANCE,  under  the  Statutes  of  Frauds— 
acct'ptancp  required  by  statute  may  be  constructive,  10 
question  whether  facts  proven  amount  to  a  constructive  acceptance 

is  one  of  fact,  not  of  law,  16 
if  facts  are  not  in  dispute  it  belongs  to  the  court  to  determine  their 

legal  efifect,  16 
acceptance  may  be  inferred  when  vendee  deals  with  the  goods  aa 

his  own,  IG 
as  taking  possession  of  bill  of  lading,  17 

marking  or  permitting  others  to  mark  goods  with  name  of  ven- 
dee, 17 
acceptance  of  an  order  for  the  goods,  17 
acceptance  of  part  of  the  goods,  17 
although  a  portion  is  still  to  be  manufactured,  17 
but  there  must  be  acts  of  such  a  character  as  to  place  the  goods 

within  the  power  of  the  vendee  as  absolute  owner,  17 
discharging  all  lifu  for  the  price,  17 
delivery  to  common  carrier  would  constitute  a  receipt,  but  not  an 

acceptance,  17 
receipt  and  unpacking  do  not  amount  to  an  acceptance,  17 
unless  goods  are  kept  an  unreasonable  time,  17 
vendee  must  exercise  his  option  to  receive,  17 
or  have  done  something  to  deprive  him  of  his  option,  17 
CONSTRUCTIVE  OR  SYMBOLICAL  DELIVERY— 
rule  formulated  by  Lord  Ellenborough,  34 
where  goods  are  ponderous,  delivery  may  be,  34 
each  case  dependent  upon  nature  and  situation  of  property,  35 
cargo  may  be  transferred  by  bill  of  lading  and  invoice,  35 
in  each  case,  must  be  with  intent  to  transfer  the  title,  35 

COTTON— 

sales  of  not  complete  until  weight   and  value   have  been  ascer- 
tained, 31 

must  be  with  the  concurrence  of  the  vendee,  31 

there  being  no  agreement  therefor,  weighing  is  not  necessary  to 
constitute  a  delivery,  31 
DAMAGES,  I\[easure  of  for  breach  of  wahranty — 

is  difference  between  value  as  warranted  and  as  it  actually  proves 
to  be,  1 20 

purchase  price  \s  prima  facie  value  as  warranted,  120 

vendee  may  resell  and  recover  loss  and  all  proper  expenses,  if 
vendor  refuse  to  rescind,  120 

in  action  for  breach  of  warranty  of  title,  damages  can  only  be  re- 
covered for  actual  loss,  120 

no  special  form  of  pleading  necessary,  120 

in  action  for  breach  of  warranty  in  sale  of  machine,  evidence  of 
cost  to  supply  defect  is  admissible,  120 


150  Index. 

Damagks — Continued. 

expenses  in  trying  to  make  it  work  are  recoverable,  120 

in  sale  of  plantain  for  clover  seed,  measure  of  damages  would  be 

diflference  in  value  of  seed  and  injury  to  land,  121 
prospective  profits  can  never  be  considered,  121 
expenses  in  preparing  seed  for  sowing  have  been  recovered,  121 
rule  in  sale  of  burglar-proof  safes,  121 
in  sale  of  material  for  manufacturing  purposes,  difference  between 

value  of  defective  article  and  value  if  made  from  material  as 

warranted  is  measure  of  damages,  122 

DEFINITIOX  OF  SALE— 

same  whether  sale  be  absolute  or  conditional,  3 

DELIVERY— 

Question  of  intent — 
whether  delivery  be  absolute  or  conditional   is  a  question  of  in- 
tent, 33 
intent  is  a  question  for  the  jury,  33 
evidence  may  justify  a  determination  hy  the  court,  33 
law  implies  place  of  delivery  is  at  place  where  the  2:)roperty  is  at 

time  of  sale,  33 
different  rule  prevails  where  time  and   place  of  delivery  is  pro- 
vided by  contract,  34 
time  of  delivery  not  beiiig  fixed  by  contract,  must  be  within  a 
reasonable  time,  34 
Symbolical  or  constructive  delivery— 

rule  formulated  by  Lord  Ellenborough,  34 
where  goods  are  ponderous,  delivery  may  be,  34 
each  case  dependent  upon  nature  and  situation  of  property,  35 
delivery  of  deed  of  transfer  of  ship  at  sea  passes  title,  35 
cargo  may  be  transferred  by  bill  of  lading  or  invoice,  35 
in  each  case,  must  be  with  intent  to  transfer  the  title,  35 
Delivery  to  carrier — 

is  sufficient,  carrier  being  regarded  as  agent  of  vendee,  36 

goods  so  delivered  must  be  in  proper  condition,  36 

so  that,  in  case  of  damage,  action  may  be  maintained  against  the 

carrier,  36 
vendor  is  bound  to  insure,  if  so  instructed,  36 
or  if  such  has  been  the  usage  between  the  parties,  36 
delivery  to  designated  carrier  is  delivery  to  vendee,  36 
if  shipment  be  by  a  route  other  than  the  one  designated,  delivery 
is  not  complete,  36 
Delivery  of  more  or  less  than  contracted  for — 

vendor  does  not  comply  with  contract  by,  37 

or  by  delivery  of  goods  sold  mixed  with  other  goods,  37 

if  so  delivered,  may  be  held  subject  to  order,  37 


Index.  151 

Dki.iv  kr  y —  Con  tin  xed. 

if  delivered  in  an  essentially  altered  condition,  contract  will  not 

li;ive  been  complied  with,  37 
where  goods  are  ordered  from  forres])()iideiit  or  jiurcliasiiif;  agent, 

rule  is  less  rigid,  37 
vendee  may  refuse  to  receive  if  good?  tendered  either  exceed  or 

are  less  in  quantity  than  agreed  upon,  37 
is  bound  to  pay  for  any  part  accepted,  37 
moderate  and  reasonable  latitude  in  i)erformance  allowed,  if  words 

of  qualification  are  used,  such  as  "about"  or  "more  or  less,"  38 
Time  of  delivery — 
where  contract  expresses  the  time  of  delivery,  it  is  a  question  of 

constriction  for  the  court,  38 
time  of  dolivery  not  being  fixed  by  contract,  must  be  within  a  rear 

sonablo  time,  34 
month  is  construed  as  a  calendar  month,  38 
unless  contrary  meaning  clearly  indicated,  38 
certain  number  of  days  construed  as  consecutive,  39 
Sundays  included,  39 

day  of  raaking  contract  should  be  excluded  in  computing  time,  39 
between  two  days  includes  the  last  day,  39 
readiness  at  time  and  place  designated  held  sufficient,  39 
place  not  being  designated,  tender  a  convenient  time  before  mid- 
night sufficient,  39 
place  being  designated,  tender  must  be  during  daylight  and  a  con- 
venient time  before  sunset,  39 
contr£,ct  to  deliver  "as  fast  as  produced"  construed,  39 
"  prompt  shipment"  construed,  39 

contrict  to  ship  within  "  cevtain  specified  months"  construed,  40 
delivery  atid  acceptance  after  the  agreed  time  does  not  of  itself 

wcrk  a  reduction  of  price,  40 
if  notes  are  given  for  goods  to  be  delivered  at  a  future  day,  a  fail- 

uie  to  so  deliver  will  constitute  a  failurfe  of  consideration,  40 
Place  if  delivery — 
law  implies  place  of  delivery  is  at  place  where  property  is  at  time 

of  sale,  33 
diflFerent  rule  prevails  where  time  and  place  of  delivery  is  provided 

hj  contract,  34 
delivery  must  be  at  place  designated  by  contract,  41 
unless  it  becomes  impossible  through  act  of  vendee,  41 
deLvery  at  time  and  place  sufficient,  41 
acceptance  by  vendee  need  not  be  shown,  41 
veidor  may  resell,  after  due  delay,  if  vendee  unreasonably  neglect 

or  refuse -to  receive  the  goods,  41 
ani  recover  deficit  in  price  from  vendee,  41 
common  in  such  case  to  sell  at  auction,  41 
bit  it  is  not  necessary,  41 


152  Index. 

Delivery — Continued. 
Estoppel,  delivery  by — 

rule  formulated  by  Lord  Blackburn,  42 

vendor's  conduct  may  estop  him  from  denying  the  transfer,  42 

as  allowing  another  to  contract  on  the  faith  or  understanding  o\ 
some  fact  which  he  can  contradict,  42 

allowing  vendee  to  hold  himself  out  as  owner,  42 

special  cases  cited,  42 
Delivery  of  described  article,  essential — 

delivery  of  described  article,  a  condition  precedent,  43 

if  not  perfoi'med  vendee  may  reject  the  article,  43 

may  recover  the  price  if  paid  for,  43 

rule  formulated  by  Lord  Abinger,  43 

words  of  description  constitute  a  warranty,  44 

doctrine  questioned,  44 

vendor  undertakes,  that  the  thing  delivered  corresponds  to  the 
description,  44 

an  article  of  the  species,  kind,  and  quality  thus  expressed  in  the 
contract  of  sale,  44 

suffic'ent  if  goods  are  in  specie,  that  for  which  sold,  44 

and  merchantable  under  denomination  affixed  to  them,*44 

goods    not    answering     description,    vendee    must    o9Fer    to    re- 
turn, 44 

oflFer  to  return  must  be  unconditional,  44 

delay  in  offering  to  return,  or  any  act  equivalent  to  acceptance, 
employment,  or  disposition  of  the  goods  after  knowledge  of  de- 
ficiency construed,  44 
Delivery  without  payment — 

with  express  agreement  that  title  shall  remain  in  vendor  until 
payment,  payment  is  a  condition  precedent,  60 

though  part  of  the  goods  may  have  been  paid  for,  60 

vendee  can  convey  no  title  by  sale,  60 

goods  may  be  recovered,  though  in  hands  of  innocent  ven  lee,  60 

property  is  not  subject  to  seizure  by  creditors  of  the  vendee,  60 

until  they  pay  or  tender  to  vendor  amount  due,  60 

tender  of  amount  due  not  sufficient  if  the  property  has  beea  taken 
possession  of  by  the  vendor,  60 

vendee  may  have  power  to  sell  portion  of  goods,  and  coidition 
still  be  enforcible  against  remainder,  61 

vendor  must   not  have   been   guilty  of  laches   in   asserting  his 
rights,  61 

nor  his  conduct  amount  to  a  waiver  of  performance,  61 

condition  of  payment  not  waived  by  taking  vendee's  note,  k\ 

delivery  under  condition  that  payment  shall  be  by  note  is  con- 
ditional, 62 

upon  vendee's  refusal  to  give  note,  goods  may  be  replevined,  62 


Index.  153 

Delivery — Continued. 

iailure  to  pay  an  installment  on  time  entitles  the  vendor  to  pos- 
session, 62 

where  time  is  essence  of  contract,  62 

commencing  suit  or  issuing  attachment  for  amount  due  does  not 
amount  to  a  waiver  of  vendor's  right  to  retake  the  goods,  62 

forfeiture  is  waived,  if  vendor  makes  a  new  contract,  62 

waiver  of  one  forfeiture  is  not  evidence  of  waiver  of  subsequent 
forfeitures,  62 

mortgage  covering  after  acquired  property  will  not  affect  vendor's 
title,  63 

mortgagor  acquires  no  title  until  terms  of  sale  have  been  com- 
j)lied  with,  63 

vendee  has  a  right  to  mortgage,  63 

and  mortgage  will  take  precedence  of  an  attachment,  63 

execution  of  mortgage  is  an  assumption  of  ownership,  63 

vendor  may  repossess  himself  of  chattels  vfithout  refunding  par- 
tial payments.,  63 

duty  is  to  notify  vendee  of  his  claim,  63 

right  of  vendor  to  retake  does  not  confer  upon  vendee  the  right 
to  return  the  property,  63 

conditional  contracts  of  sale  not  per  se  fraudulent,  63 

secret  liens  are  constructively  fraudulent  as  to  creditors,  64 

conditional  sales  may  be  modified  so  as  to  make  the  contract  a 
mortgage,  64 

special  cases,  65 

DESCRIBED  ARTICLE,  Delivery  of  Essential— 

delivery  of  described  article,  a  condition  precedent,  43 

if  not  performed'  vendee  may  reject  the  article,  43 

may  recover  the  price  if  paid  for,  43 

rule  formulated  by  Lord  Abinger,  43 

words  of  description  constitute  a  warranty,  44 

doctrine  questioned,  44 

vendor  undertakes,  that  the  thing  delivered  corresponds  to  the 
description,  44 

an  article  of  the  species,  kind,  and  quality  thus  expressed  in  the 
contract  of  sale,  44 

sufficient  if  goods  are  in  specie,  that  for  which  sold,  44 

and  merchantable  under  denomination  affixed  to  them,  44 

goods  not  answering  description,  vendee  must  offer  to  re- 
turn, 44 

offer  to  return  must  be  unconditional,  44 

delay  in  ottering  to  return,  or  any  act  equivalent  to  acceptance, 
employment,  or  disposition  of  the  goods  after  knowledge  of  de- 
ficiency, construed,  44 


154  Index. 

DESCRIPTION,  SALE  BY— 

sale  of  article  known  in  market  by  a  particular  name,  a  warranty 
is  implied  that  article  is  of  kind,  character,  and  description,  94 

vendee  not   having  seen    the  article  and  meaning  of  description 
being  known  to  the  parties  '.U 

not  necessary  that  article,  wlun  delivered,  sliould  be  of  any  cer- 
tain quality  of  the  brand,  94 

in  absence  of  fraud,  vendor  can   only  be  called  upon  to  deliver 
article  ot  the  specified  brand,  94 
DISABILITIES— 

may  be  permanent  or  temporary,  4 

render  the  contract  voidable,  not  void,  4 

DRAFT  OR  CHECK— 

payment   by   is   a    mode   of    making   cash    payment    and    con- 
ditional, 30 
EARNEST  AND  PART  PAYMENT,  under  the  Statutes  of  Frauds — 
verbal  contract  valid,  and  i>roof  of  it  competent  if  something  iu 

earnest  or  part  payment  of  the  price  be  given,  18 
common-law  rule  not  changed  by  statute,  IS 
payment  may  be  shown  by  parol  evidence,  18 
but  proof  of  tender  is  not  competent,  18 
money  tendered  must  be  actually  accepted,  19 
not  sufficient  if  money  deposited  with  third  person,  19 
payment  must  be  in  money  or  its  equivalent,  19 
time  of  payment  is  not  essential  except  in  New  York,  19 
may  be  at  time  of  sale  or  afterward,  19  ' 

by  the  vendee  or  his  agent,  19 
EFFECT  OF  A  WARRANTY— 

article  not  being  as  warranted,  vendee  may  return  it,  112 

or  offer  to  return  it  within  a  reasonable  time,  where  the  time  is 

not  fixed  by  contract,  1 12 
or  may  retain  it,  and  recover  damages  for  breach,  1 12 
may,  by  taking  express  warranty,  be  relieved  of  obligation  to  re- 
turn the  property,  112 
and  still  hold  vendor  responsible  for  deficiency,  112 
vendee  can  not  avoid  payment  by  exercise  of  an  arbitrary  opin- 
ion, 112 
defect  must  be  such  as  to  amount  to  a  breach  of  contract,  112 
retention  of  goods  after  time  limited  renders  vendee   liable  for 

price,  113 
express  warranty  extends  to  all  defects,  113 
warranty  of  soundness  may  cover  patent  defects,  113 
examination  and   appropriation   of  warranted   articles   is   not  a 

waiver  of  the  contract,  1 13 
vendee  not  bound  to  rescind,  on  discovering  a  breach,  113 
may  recover  damages  for  breach,  113 


Index.  155 

Effect  op  a  warranty — Continued. 

in  the  sale  of  material  to  be  manufactured  into  articles  of  mer- 
chandise, vendee  not  b()un<l  to  apply  tests  before  using,  113 

if  bought  to  combine  with  other  material,  and  part  are  found  de- 
fective, vendee  may  refuse  to  use,  1  \?> 

if  sold  for  particular  use,  :iiid  warranted  "perfect,"  it  means,  per- 
fect for  intended  use,  114 

"  to  satisfy  trade,"  meaning  of,  114 

obligations  of  express  warranty  are  concurrent,  114 

yet  obligations  may  be  waived,  114 

failure  to  insist  on  payment  for  breach  of  warranty  will  not 
amount  to  waiver,  114 

ELEMENTS  OF  CONTRACT  OF  SA.LE— 
Competent  parties — 

only  the  owner,  his  agent,  or  legal  representatives,  can  give  a  valid 
title,  4 

administrators  or  executors,  officers  of  courts  having  jurisdiction, 
bailies,  mortgagees,  jDledgees,  or  their  assigns,  are  legal  repre- 
sentatives, 4 

vendee  acquires  no  better  title  than  his  vendor,  3 

title  can  not  be  acquired  in  property  lost  or  stolen,  4 

property  lost  or  stolen  may  be  recovered,  4 

all  persons  competent  to  contract  may  buy,  4 

disabilities  render  contract  voidable,  not  void,  4 

disabilities  may  be  permanent  or  temporary,  4 

coverture,  disability  of,  removed  in  many  states,  4 

married  women  may  then  contract  as  feme  soles,  4 
Mutual  assent — 

assent  of  competent  parties  is  essential,  5 

must  be  mutual  and  voluntary,  5 

need  not  be  expressed,  5 

may  be  implied,  5 

may  be  by  same  means  as  proposition,  5 

must  be  bofore  expiration  of  limit,  ri 
Subject  of  sale — 

must  be  something  the  subject  of  sale,  5 

a  hope  or  expectation  may  be  the  subject  of  sale,  5 

mere  possibility  or  contingency  not,  5 

if  subject  of  sale  has  ceased  to  exist,  by  nny  cause,  at  time  of  sale, 
there  would  be  no  sale,  5 

if  price  had  been  paid,  it  may  be  recovered,  5 
Consideration — 

price  is  an  element  of  every  valid  sale,  6 

must  be  either  determined  or  determinable,  6 

need  not  be  paid  down,  0 

must  be  an  agreement  to  pay,  6 


156  Index. 

Elements  of  contbact  of  sale — Continued. 

law    implies   an  agreement   to   pay  what  property  is  reasonably 
worth,  6 

may  be  fixed  by  appraisement,  6 

or  quotations  upon  a  day  to  be  fixed,  6 

time  of  payment  may,  by  contract,  be  determinable  b>  the  usual 
time  required  for  the  trip  of  a  ship,  6 
Transfer  of  property — 

has  been  held  not  essential  to  pass  title  to  property,  7 

becomes  essential  if,  by  terms  of  contract,  delivery  is  one  of  the 
conditions  thereof,  7 
TOPPEL,  DELIVERY  BY— 

rule  formulated  by  Lord  Blackburn,  42 

vendor's  conduct  may  estop  him  from  denying  the  transfer,  42 

as  allowing  another  to  contract  on  the  faith  or  understanding  of 
some  fact  which  he  can  contradict,  42 

allowing  vendee  to  hold  himself  out  as  owner,  42 

special  cases  cited,  42 
EVIDENCE— 

payment   under   statute    of  frauds   may  be  shown   by  parol  evi- 
dence, 18 

but  proof  of  tender  is  not  competent,  18 

oral  evidence  of  acceptance  of  written  proposition  is  competent 
to  prove  memorandum,  20 

memorandum  being  signed  by  initials  of  parties,  parol  evidence  is 
admissible  to  apply  the  description,  21 

if  silent  as  to  price  parol  evidence  is  admissible  to  show  that  price 
was  agreed  upon,  22 

evidence  of  usage  or  custom  is  competent,  59 

must  be  evidence  of  intent  in  sales  by  sample,  93 

but  in  action  by  vendor  for  price  he  must  show  that  goods  corre- 
spond with  sample,  93 

parol  evidence  not  admissible  to  add  a  warranty  to  a  written  con- 
tract of  sale,  108 

in  action  for  breach  of  warranty  in  sale  of  machine  evidence  of 
cost  to  supply  defect  is  admissible,  120 

written  warranty  excludes  evidence  of  oral  warranty,  123 

evidence  of  fraud  competent  to  show  that  written  order  never  be- 
come operative,  123 

evidence  of  how  other  similar  machines  worked  not  material,  121 

unless  fault  in  plan  or  design  of  construction  be  at  issue,  124 

evidence  of  working  of  machine  for  several  harvests  admissible  to 
show  intrinsic  defects,  128 
EXPECTATION  OR  HOPE— 

founded  on  a  right  in  being  may  be  the  subject  of  sale,  5 


Index.  157 

FURNITUHE— 

cuiiditioiial  sales  of,  sustaiiie<l  in  every  state  but  Pennsylvania,  09 

vendor  not  authorized   to  enter  home  of  vendee  in  his  absence, 

without  his  consent,  and  without  notice  take  the  furniture,  69 

GOODS  TO  ARRIVE,  SALE  OF— 

can  be  either  an   executed  sale  subject  to  be  defeated  by  non- 
arrival  of  goods,  82 

or  an  executory  contract  to  sell  and  buy,  82 

the  English  cases  do  not  settle  what  language  it  is  necessary  to 
use,  83 

opinion  in  leading  case  by  .ludge  Blackburn,  83 

quality,  quantity,  and  jji-ice  having  been  ascertained,  bill  of  lading 
assigned,  there  would  be  a  constructive  delivery,  84 

any  other  act  equivalent  to  assignment  of  bill  of  lading,  the  effect 
held  to  be  the  same,  84 
HOPE  OR  EXPECTATK^N  OF  MEANS— 

if  founded  on  a  right  of  being  may  be  the  subject  of  sale,  5 

INTE NT- 
delivery  must  be  with  intent  of  vesting  right  of  possession,  15 

acceptance    must    also    be   with    intent   to    take    possession    as 
owner,  15 

conditions  precedent  governed  by  intent,  27 

where  property  has  been  separated  title  will  pass,  that  being  intent 
of  parties,  30 

delivery  is  a  question  of  intent,  o3 

symbolical  delivery  must   be  with   intent  to  transfer  title  to  the 
property  sold,  35 

"C.O.D."  manifests  vendor's  intent  to  control  the  jus  disponendi,  48 

acceptance  of  note  does  not  extinguish  indebtedness  unless  an 
intent  to  do  so  is  shown,  52 

sale  of  goods  to  arrive  governed  by  intent,  83 

element  of  intent  necessary  to  constitute  a  warranty,  86 

in  sales  by  sample  intent  necessary,  93 

representations  to  amount  to  a  warranty  must  be  made  with  in- 
tent to  warrant,  103,  108 

and  with  intent  to  have  vendee  rely  thereon,  103 

intent  to  warmnt  may  be  inferred,  104 

warranty  of  soundness  may  cover  patent  defects  when  so  intended, 
113 
IRON— 

contracts  for  sale  of,  within  the  statutes  of  frauds,  12 

LEGAL  REPRESENTATIVES— 

who  can  give  a  valid  title  are  administrators  or  executors,  4 
officers  of  courts  having  jurisdiction,  4 
bailees,  mortgagees,  pledges,  or  their  assigns,  4 
no  implied  warranty  in  sales  by,  89 


158  Inde^.. 

LUMBER— 

sales  of,  to  be  taken  and  measured  from  a  large  bulk  not  complete, 

even  between  parties,  until  selected  and  measured,  32 
when  sold  subject  to  measurement  by  an  inspector,  vendee  may 

insist  on  actual  measurement,  32 
a  mere  estimate  is  not  sufficient,  32 

where  by  agreement  the  parties  are  to  do  the  measuring,  but  dis- 
agree, title  does  not  pass,  32 
though  sale  be  of  an  entire  lot,  32 

when  all  is  sold,  and  price  ascertained,  no  such  process  is  needed 
to  pass  title,  32 
MANUFACTURER'S  OWN  MAKE— 

implied  condition  that  goods  shall  be,  85 

rule  adopted  in  Scotland,  85 

on  sale  of  goods  by  manufacturer  there  is  an  implied  condition 

that  they  shall  be  his  own  make,  85 
purchaser  entitled  to  reject  others,  85 
although  they  are  of  the  quality  contracted  for,  85 
MARRIED  WOMEN— 

may  contract  where  disability  has  been  removed  by  statute,  4 

MEASUREMENT— 

where  price  is  determinable  by  measurement,  it  is  presumptively 
a  condition  precedent,  31 

employment  of  a  person  to  do  the  measuring  not  sufficient,  31 

in  port  of  New  York,  purchase  of  grain  governed  by  custom,  31 

employment    of    measurer,   is    a    substantial   compliance  there- 
with, 31 

sales  of  cotton  not  complete  until  weight  and  value  have  been  as- 
certained, 31 

must  be  with  the  concurrence  of  the  vendee,  31 

there  being  no  agreement  therefore,  weighing  not  necessary  to 
constitute  a  delivery,  31 

sales  of  lumber  to  be  taken  and  measured  from  a  large  bulk,  not 
complete,  even  between  parties,  until  selected  and  measured,  32 

when  sold  subject  to  measurement  by  an  inspector,  vendee  may  in- 
sist on  actual  measurement,  32 

a  mere  estimate  not  sufficient,  32 

where  by  agreement  the  parties  are  to  do  the  measuring,  but  disa- 
gree, title  does  not  pass,  32 

though  sale  be  of  an  entire  lot,  32 

when  all  is  sold  and  price  ascertained,  no  such  process  is  needed 
to  pass  title,  32 

not  necessary  in  sale  of  barrel  staves,  32 
MEASURE  OF  DAMAGES,  for  Breach  of  Warranty. 

is  difference  between  value  as  warranted  and  as  it  actually  proves 
to  be,  120 


Index  159 

Measure  of  damages — Contimud. 

jturchase  price  is,  prima  facie  value  as  warranted,  120 

vendee  may  re-sell  and  recover  loss  and  all  proper  expenses  if 
vendor  refuse  to  rescind,  120 

in  action  for  breach  of  warranty  of  title,  damages  can  only  be  re- 
covered for  actual  loss,  120 

no  special  form  of  pleading  necessary,  120 

in  action  for  breach  of  warranty  in  sale  of  machine,  evidence  of 
cost       supply  defect  is  admissible,  120 

expenses  in  trying  to  make  it  work  are  recoverable,  120 

in  sale  of  plantain  for  clover  seed,  measure  of  damages  would  be 
difference  in  value  of  seed  and  injury  to  land,  121 

prospective  profits  can  never  be  considered,  121 

expenses  in  preparing  seed  for  sowing  have  been  recovered,  121 

rule  in  sale  of  burglar    roof  safes,  121 

in  sale  of  material  for  manufacturing  purposes,  difference  between 
value  defective  article  and  value,  if  made  from  the  material 
as  warranted,  is  measure  of  damages,  122 

MEMORANDUM,  Its  Form— 

statute  requires  evidence  that  the  agreement  or  some  note  or 

memorandum  thereof  be  in  writing,  19 
signed  by  the  party  to  be  charged  thereby,  19 
or  his  lawful  agent,  19 

unless  part  payment,  or  delivery  with  acceptance  is  shown,  19 
form  of  memorandum  not  limited  by  statute,  19 
may  consist  of  telegram,  19 
bill  of  parcels,  19 
statement  of  account,  in  which  vendee  charges  himself  with  goods 

received, 19 
or  the  return  of  a  slieriff  on  execution,  20 
a  vote  of  a  corporation,  entered   on   their  records  and  signed  by 

their  clerk,  20 
or  a  written  proposition  if  supported  by  oral  evidence  of  accepts 

ance,  20 
any  number  of  papers  taken  together  may  make  out  the  note  or 

memorandum,  20 
but  each  must  be  signed  by  party  to  be  charged,  20 
all  the  elements  of  contract  must  appear,  20 
or  be  legally  presumable  by  what  is  stated,  20 
Parties  to  memorandum — 

memorandum  should  show  who  are,  21 

if  signed  by  party  to  be  charged,  it  is  sufficient  if  it  appear  with 

reasonable  certainty  who  other  party  is,  21 
thus  a  letter  addressed  to  vendor  and  signed  by  vendee,  21 
though  addressed  to  and  received  by  the  agent  of  the  vendor,  21 


160  Index. 

Memorandum,  Its  form — Continued. 

may  be  designated  by  their  initials,  21 

parol  evidence  being  admissible  to  apply  the  description,  21 
Price,  must  appear  in  memorandum — 

no  price  having  been  agreed  upon,  none  need  be  stated  in  mem- 
orandum, 21 

law  presumes  a  promise  to  pay  a  reasonable  price,  21 

where  price  is  fixed,  that  is  part  of  the  bargain,  21 

and  must  be  shown  in  writing,  21,  22 

memorandum  being  silent  as  to  price,  parol  evidence  is  admissible 
to  show  that  price  was  agreed  upon,  22 

price  being  indicated  in  the  memorandum,  by  figures  or  letters,  or 
both,  it  is  sufficient  to  that  extent,  22 

or  if  it  appear  that  price  is  to  be  determined  by  arbitration,  22 

or  the  agreement  is  to  pay  same  for  which  the  property  had  been 
previously  soL  ,  22 

or  a  moderate  price,  22 

memorandum  being  silent  as  to  time  of  payment,  a  cash  sale  will 
be  presumed,  22 

if  credit  is  given  it  must  appear  in  the  memorandum,  22 

need  not  appear  whether  deferred  payments  are  to  be  with  inter- 
est, 22 

where  price  in  gross  of  articles  sold  at  same  time  exceed  sum  des- 
ignated by  statute,  sale  will  fall  within  its  provisions,  lo 
Siffnin<j/  of  memorandum — 

memorandum  must  be  signed  by  the  party  to  be  charged,  or  his 
agent,  23 

signature  must  be  some  mark  or  emblem  intended  to  denote  a  sig. 
nature,  23 

even  though  memorandum  be  in  party's  own  hand,  there  must 
still  be  a  signature,  23 

may  consist  of  a  mark,  or  initials,  23 

or  may  be  in  printing,  23 

or  by  stamp,  if  shown  to  have  been  adopted  as  a  signature,  23 

may  be  written  with  lead  pencil,  23 

location  of  signature  is  immaterial,  23 

may  be  in  body  of  the  paper,  or  at  the  beginning  or  end,  23 

must  be  with  intent  to  obligate,  23 

may  be  made  by  third  party,  at  request  and  in  presence  of  party 
to  be  charged,  23 

may  be  signed  by  the  duly  authorized  agent,  23 

or  by  a  stranger,  if  afterward  ratified,  23 

a  broker,  or  auctioneer,  is  agent  of  both  parties,  23 

memorandum  signed  by  him  is  sufficient,  23 

MEMORANDUM  SALES— 

in  mercantile  usage,  have  a  special  significance,  59 


Index.  161 

Memorandum  sales — Continued. 

mean  that  goods  are  sent  subject  to  approval,  59 

title  does  not  pass  until  approval,  50 

evidence  of  usage  or  custom  is  competent,  59 

presumed  that  parties  contracted  with  reference  to  it,  59 

acceptance  must  be  in  fact,  59 

by  means  intended  to  be  conveyed  to  the  knowledge  of  ven- 
dor, 59 

ace  iptance  can  not  be  by  mental  act,  59 

or  conduct  unknown,  and  not  communicated  to  the  vendor,  59 

assent  may  be  by  letter,  or  telegram,  59 

though  it  is  not  necessary  to  prove  their  receipt  by  vendor,  59 

vendee's  right  to  assent  is  extinguished  if  he  make  an  assignment 
or  part  with  the  goods,  59 

delivery  of  goods  before  receipt  of  terms  is  not  necessarily  a  waiver 
of  the  conditions,  60 

there  may  be  possession  without  conferring  the  right  to  posses- 
sion, 60 

MERCHANTABLE  CHARACTER— 

merchandise  sold  to  arrive,  which  neither  party  can  inspect,  caveat 
venditor  should  apply,  99 

there  is  implied  engagement  that  article  should  be  merchanta- 
able,  99 

same  rule  applies  where  manufacturer  or  dealer  undertakes  to  sup- 
ply article,  99 

vendee  not  having  opportunity  to  inspect,  99 

rule  of  board  of  trade  will  have  no  application  to  prevent  implied 
warranty,  99 

rule  of  implied  warranty  of  miTchantable  character  is  extended 
to  merchants,  'J9 

no  implied  warranty,  where  vendee  has  equal  opportunity  for 
knowledge,  and  vendor  is  not  the  manufacturer,  99 

in  complete  contracts,  there  being  no  warranty,  false  representa- 
tions, or  fraudulent  concealments,  vendee  takes  property  regard- 
less of  defects,  99 

in  executory  contracts,  obligation  always  arises  that  article  shall 
be  merchantable,  99 

at  least,  without  any  reasonable  defect,  100 

vendee  can  not  insist  that  article  should  be  of  any  special  degree 
of  fineness,  100 

he  may  insist  that  it  should  be  of  medium  cjuality  or  goodness, 
100 

free  from  such  defects  as  would  render  it  unmerchantable  or  unfit 
for  purpose  for  which  ordinarily  used,  100 
11 


162  Index. 

Merchantable  character — Continued. 

rule  applied    to  sales  of  wheat,  guano,  superphosphate,  ice,  and 

lumber,  100 
rule  does  not  apply  to  sales  of  residuum  or  refuse  of  manufactur- 
ing establishments,  100 
MORE  OR  LESS  THAN  CONTRACTED  FOR— 

vendor  does  not  comply  with  contract  by  delivery  of,  37 

or  by  delivery  of  goods  sold  mixed  with  other  goods,  37 

if  so  delivered,  may  be  held  subject  to  order,  37 

if  delivered  in  an  essentially  altered  condition,  contract  will  not 

have  been  complied  with,  37 
where  goods  are  ordered  from  correspondent,  or  purchasing  agent, 

rule  is  less  rigid,  37 
vendee  may  refuse  to  receive,  if  goods  tendered  either  exceed  or 

are  less  in  quantity  than  agreed  upon,  37 
is  bound  to  pay  for  any  part  accepted,  37 
moderate   and    reasonable  latitude    in   performance   allowed,    if 

words  of  qualification  are  used;  such  as  "about,"  or  "more  or 

less,"  38 

MORTGAGE— 

covering  after-acquired  property  will  not  affect  vendor's  title,  63 
mortgagor  acquires  no  title  until  terms  of  sale  have  been  complied 

with,  63 
vendee  has  a  right  to  mortgage,  63 
and  mortgage  will  take  precedence  of  attachment,  63 
execution  of  mortgage  is  an  assumption  of  ownership,  63 
of  railroad  equipment,  72-75 

MORTGAGEES— 

are  legal  representatives  wno  can  give  a  valid  title,  4 

take   just   such    interest   as    mortgagor   acquired,    no    more    no 

less,  63 
mortgagor  acquires  no  title  until  terms  of  sale  shall  have  been  com- 
plied with,  63 
MUTUAL  ASSENT— 

of  competent  parties  essential  in  contracts  of  sale,  5 

OFFICERS  OF  COURTS— 

having  jurisdiction,  are  legal  representatives  who  can  give  a  valid 

title,  4 
no  implied  warranty  of  title,  in  sales  by.  89 

ORGANS— 

conditional  sales  of,  sustained,  68 

PAYMENT  A  CONDITION  PRECEDENT— 

unless  otherwise  expressed,  payment  is  an  implied  condition,  47 
delivery  and  payment  presumed  to  be  simultaneous  and  concur- 
rent, 47 


Index.  163 

Payment  a  condition  precedent — Continued. 

delivery,  with  expectation  of  immediate  payment,  is  not  abso- 
lute, 47 

title  does  not  vest  until  price  is  paid,  47 

at  common  law  vendee  can  not  delay  payment  until  demand,  47 

must  pay  as  soon  as  due,  47 

where  price  is  made  payable  only  after  demand,  a  reasonable  time 
must  be  allowed  to  make  payment,  47 

payment  by  check  being  refused,  it  is  not  unreasonable  delay  for 
vendee  to  offer  payment  in  money  on  morning  of  next  banking 
day  47 

payment  made  by  mode  requested  by  vendor  discharges  ven- 
dee, 47 

if  made  by  mail,  it  is  at  vendee's  risk,  47 

unless  vendor  direct  or  assent  to  that  mode  of  payment,  47 

assent  of  vendee  may  be  implied,  47 

from  conduct  or  usual  course  of  business,  47 
Cash  payment — 

may  be  express  or  implied  condition,  48 

is  a  condition  precedent,  48 

until  performed  property  does  not  vest  in  vendee,  48 

delivery  may  be  accompanied  or  followed  by  terms,  48 

if  delivery  is  unconditional,  title  vests,  48 

C.  O.  D.  manifests  vendor's  intention  to  control  jj<5  disponendi,  48 

time  in  which  to  pay  the  cash  may  be  varied  by  custom,  49 

assignment  prior  to  payment  prevents  performance,  and  no  title 
vests,  49 

assignee  takes  no  better  title  than  vendee  had,  49 

vendee  may  recover  goods  if  guilty  of  no  laches,  49 

even  from  one  who  has  purchased  in  good  faith,  and  without 
notice,  49 

rule  questioned  in  New  York,  49 

there,  purchasers  from  conditional  vendee  acquire  a  good 
title,  49 

vendee  having  been  allowed  to  assume  position  of  owner,  49 

but  no  title  can  be  acquired  where  contract  partakes  of  bailment 
with  executory  agreement  for  purchase,  condition  not  having 
been  performed,  49 
Payment  by  check  or  dmft — 

is  a  mode  of  making  cash  payment,  50 

is  not  the  acceptance  of  a  security,  50 

such  payment  is  conditional,  50 

if  check  is  dishonored,  vendor  may  retake  the  goods,  50 

check  will  operate  as  absolute  payment  if  presentment  is  delayed 
to  the  injury  of  drawer,  50 


164  Index. 

Payment  a  condition  precedent — Continued. 

if  payment  be  by  check  indorsed  by  vendee,  acceptance  thereof 

releases  vendee,  except  as  indorser,  50 
payment  by  draft  is  also  conditional,  50 
burden  on  vendee  to  prove  an  agi-eement  to  receive  as  absolute 

payment,  51 
fraud  of  one  partner  to  induce  vendor  to  receive  his  individual 

acceptance  will  not  release  other  partner,  51 
where  payment  is  by  exchange,  vendee  not  rendered  liable  by  un- 
expected failure  of  bank,  51 
if  he  has  exercised  care  in  purchasing  bill  of  exchange,  51 
Payment  by  note — 

if  provided  by  contract,  becomes  a  condition  precedent,  52 

title  will  not  vest  without  such  payment,  52 

or  its  waiver  by  the  vendor,  52 

giving  of  note  does  not  extinguish  indebtedness,  52 

an  intent  to  extinguish  must  be  shown,  52 

intent  may  be  expressed  or  implied,  52 

if  note  is  to  be  indorsed,  the  taking  of  it  without  will  not  amount 

to  a  waiver  of  condition,  52 
if  note  be  indorsed  by  vendee,  and  given   as  collateral  security, 

laches  of   vendor   will   constitute   the    note  as    absolute  pay- 
ment, 52 
payment  by  paper  to  which  vendee  is  not  a  party,  is  equivalent 

of  cash  payment,  52 
if  securities  thus  passed  were  forged,  vendor  could  rescind  sale 

for  failure  of  consideration,  53 
if  genuine,  though  known  to  vendee  to  be  worthless,  sale  could  be 

rescinded,  53 
if  worthless  character  is  unknown  to  both,  it  would  be  a  case  of 

mutual  mistake,  53 
purchase  by  agent  for  an  unknown  principal,  tender  of  agent's  note 

does  not  release  principal,  53 
if  payment  be  by  partnership  note,  and  one  repudiates  his  liability 

thereon,  it  can  not  then  be  regarded  as  payment,  53 
if  by  mistake  note  is  given  for  less  amount  than  due,  title  does 

not  pass,  53 
delivery  having  been  made   without  demand  of  notes  within  a 

reasonable  time,  title  passes,  53 
2'ender — 
if  proper,  is  equivalent  to  2)ayment,  54 
requires  a  production  and  offer  to  vendor  of  an  amount  of  money 

equal  to  price,  54 
production  of  money  may  be  dispensed  with  by  vendor,  54 
the  mere  offer  to  pay  does  not  amount  to,  54 


Index.  165 

Payment  a  condition  precedent — Continued. 

if  vendee  is  jjievented   I'rom   producing  the  money  by  the  con- 
trivance or  evasion  of  vendor,  it  will  be  :i  sufficient  excuse,  54 
tender  of  larger  sum  than  due,  with  demand   for  change,  is  not 

good,  54 
nor  of  a  part  of  the  sum  due,  55 

may   tender  payment  of  one   or  more   of  several  distinct    pur- 
chases, 55 
may  tender  gross  amount  of  several  demands,  55 
tender  of  balance  due  after  deducting  set-off  not  good,  55 
may  pay  entire  sum  due  into  court,  and  then  plead  a  set-off,  55 
offer  of  a  promissory  note  signed  by  vendor  is  not  a  good  ten- 
der, 55 
tender  must  be  an  unconditional  offer  of  money,  55 
vendee  has  no  right  to  insist  that  vendor  shall    admit  that  no 
more  is  due,  55 
To  ivhom  payment  can  be  made — 
can  be  made  to  vendor  or  his  ageni,  jo 
or  to  one  who  appears  to  be  clothed  with  authority,  56 
each  case  must  depend  on  the  facts  surrounding  the  payment,  56 
payment  to  vendor's  attorney  held  sufficient,  56 
has  authority  to  receive  before  or  after  judgment,  56 
authority  limited  to  receipt  of  money  only,  56 
vendor  may  be  estopped  from  denial  of  agent's  apparent  author- 
ity, 56 
thus  payment  to  clerk  in  vendor's  --lace  of  business  is  sufficient,  56 
custom  may  regulate,  57 
or  former  dealings,  57 
Delivery  without  payment — 

with  express  agreement  that  title  shall   remain  in  vendor  until 

payment,  payment  is  a  condition  precedent,  60 
though  part  of  the  goods  may  have  been  paid  for,  60 
vendee  can  convey  no  title  by  sale,  60 

goods  may  be  recovered  though  in  hands  of  innocent  vendee,  60 
property  is  not  subject  to  seizure  by  creditor's  of  the  vendee,  60 
until  they  pay  or  tender  to  vendor  amount  due,  60 
tender  of  amount  due  not  sufficient  if  the  property  has  been  taken 

possession  of  by  the  vendor,  60 
vendee  may  have  power  to  sell  portion  of  goods  and  condition  still 

be  enforcible  against  remainder,  61 
vendor  must    not   have   been    guilty  of  laches  in    asserting   his 

rights,  61 
nor  his  conduct  amount  to  a  waiver  of  performance,  61 
condition  of  payment  not  waived  by  taking  vendee's  note,  61 
delivery  under  condition  that  payment  shall  be  by  note  is  con- 
ditional, 62 


166  Index. 

Payment  a  condition  precedent — Continued. 

upon  vendee  s  refusal  to  give  note  goods  may  be  replevied,  63 
failure  to  pay  an  installment  on  time  entitles  the  vendor  to  po8- 

ession  62 
vphere  time  is  essence  of  contract,  62 
commencing  suit  or  issuing  attachment  for  amount  due  does  not 

amount  to  a  waiver  of  vendor's  right  to  retake  the  goods,  62 
forfeiture  is  vraived  if  vendor  makes  a  new  contract,  62 
waiver  of  one  forfeiture  is  not  evidence  of  waiver  of  subsequent 

forfeitures,  62 
mortgage  covering  after-acquired  property  will  not  affect  vendor's 

title,  63 
mortgagor  acquires  no  title  until  terms  of  sale  have  been  com- 
plied with,  63 
vendee  has  a  right  to  mortgage,  63 

and  mortgage  will  take  precedence  of  an  attachment,  63 
execution  of  mortgage  is  an  assumption  of  ownership,  63 
vendor  may  repossess  himself  of  chattels  without  refunding  par- 
tial payments,  63 
duty  is  to  notify  vendee  of  his  claim,  63 
right  of  vendor  to  retake  does  not  confer  upon  vendee  the  right 

to  return  the  property,  03 
conditional  contracts  of  sale  not  per  se  fraudulent,  63 
secret  liens  are  constructively  fraudulent  as  to  creditors,  64 
conditional  sales  may  be  modified  so  as  to  make  the  contract  a 

mortgage,  64 
special  cases,  65 

PIANOS— 

conditional  sales  of,  sustained,  68 

vendor  has  no  right  of  action  for  price,  68 

remedy  is  to  retake  the  piano,  68 

where  vendee  is  allowed  to  assume  apparent  ownership,  burden  is 
on   party  claiming  adversely  to   show  non-fulfillment  of  condi- 
tions of  sale,  68 
PLACE  OF  DELIVERY— 

law  implies   place   of    delivery  is  at  place  where  property  is  at 
time  of  sale,  33 

different  rule  prevails  where  time  and  place  of  delivery  is  provided 
by  contract,  34 

delivery  must  be  at  place  designated  by  contract,  41 

unless  it  becomes  impossible  through  act  of  vendee,  41 

delivery  at  time  and  place  suflBcient,  41 

acceptance  of  vendee  need  not  be  shown,  41 

vendor  may  resell,  after  due  delay,  if  vendee  unreasonably  neglect 
or  refuse  to  receive  the  goods,  41 

and  recover  deficit  in  price  from  vendee,  41. 


Index-  167 

Place  or  delivery — Continued, 

common  in  such  case  to  sell  at  auction,  41 
but  it  is  not  necessary,  41 

PLEDGEES— 

are  legal  representatives,  who  can  give  a  valid  title,  4 

PORTABLE  ENGINES— 

conditional  sales  of,  sustained,  66 

POSSIBILITY  OR  CONTINGENCY— 

not  founded  on  a  right  or  coupled  with  an  interest,  not  the  sub- 
ject of  sale,  5 

PROMISSORY  NOTES— 

contracts  for  sale  of,  within  the  statutes  of  frauds,  12 

given  for  goods  to  be  delivered  at  a  future  day,  a  failure  to  so  de- 
liver constitutes  a  failure  of  consideration,  40 

payment  by,  may  be  a  condition,  52 

containing  provision  authorizing  vendor  to  declare  them  due  upon 
happening  of  some  event,  are  not  negotiable,  67 
PROPOSITION— 

may  be  by  letter  or  telegram,  5 

acceptance  of,  may  be  by  same  means,  5 

must  be  before  expiration  of  time  limited,  5 

QUALITY,  WARRANTY  OF— 

on  a  fair  sale,  no  implied  warranty  of,  90 

caveat  emptor  applies  in  absence  of  fraud,  90 

warranty  will  not  be  implied  from  payment  of  full  price,  91 

vendee  may  rely  upon  supposition  that  vendor  knows  condition 
and  quality  of  goods,  91 

unreasonable  rules  of  board  of  trade  as  to  inspection  of  provisions 
do  not  apply,  91 

representations  made  by  vendor  relied  upon  by  vendee  amount  to 
a  warranty,  91 

words  of  description  in  contract  or  hill  of  parcels  will  not  amount 
to  a  warranty,  91 

nor  will  a  mere  praise  of  personal  property,  if  vendee  has  an  op- 
portunity to  examine,  91 

where  goods  are  open  to  inspection  and  are  examined,  there  is  no 
implied  warranty  of  quality,  91 

same  rule  applies  where  goods  are  in  possession  of  vendee  at  time 
of  sale,  91 

no  implied  warranty  of  quality  beyond  conformity  to  model  or  de- 
sign in  sales  by,  91 

vendor  who  makes  no  warranty  or  assurance  can  not  be  answerable 
for  defects,  latent  or  otherwise,  of  which  he  had  no  knowledge,  91 

question  of  warranty  of  quality  is  for  court,  if  contract  of  sale  is 
made  solely  by  correspondence,  92 


168  Index. 

RAILROAD  EQUIPMENT— 

first  leading  case  on  the  subject,  70 

opinion  by  Mr.  Chief-Justice  Waite,  70 

conditional  sales  of  equipment  sustained,  70 

not  covered  by  mortgage  of  property  company  then  owned  or 
might  thereafter  acquire,  72-75 

mortgagees  take  just  such  an  interest  in  the  property  as  mort- 
gagor acquired — no  more,  no  less,  72-75 

rule  not  applicable  in  case  of  property  capable  of  becoming  afSxed 
to  railroad,  76 

such  becomes  a  part  of  railroad  and  is  covered  by  prior  mort- 
gage, 76 

in  Ohio,  subject  provided  for  by  special  statute,  76 

REAPERS  AND  MOWERS— 

conditional  sales  of,  sustained,  66 
sales  with  warranty,  122 

RIGGING  OF  VESSEL— 

may  be  sold  to  be  paid  for  a  certain  number  of  days  after  first  re- 
turn trip,  6 
if  lost,  price  is  due  after  the  time  usually  required  for  the  trip,  6 

REQUISITES  OF  CONTRACTS  OF  SALE— 
Elements  of  contract,  3 
Competent  parties,  3 
only  the  owner,  his  agent,  or  legal   representative  can  give  a 

valid  title,  4 
administrators  or  executors,  officers  of  courts  having  jurisdiction, 
bailees,  mortgagees,  pledgees,  or  their  assigns,  are  legal  repre- 
sentatives, 4 
vendee  acquires  no  better  title  than  his  vendor,  3 
title  can  not  be  acquired  in  property  lost  or  stolen,  4 
property  lost  or  stolen  may  be  recovered,  4 
all  persons  competent  to  contract  may  buy,  4 
disabilities  render  contract  voidable,  not  void,  4 
disabilities  may  be  permanent  or  temporary,  4 
permanent  disabilities  are  indiocy  or  insanity,  4 
temporary  disabilities  are  intemperance,  infancy,  or  coverture,  4 
coverture,  disability  of,  removed  in  many  states,  4 
married  women  may  then  contract  as /erne  soles,  4 
Mutual  assent,  5 

assent  of  competent  parties  essential,  5 

must  be  mutual  and  voluntary,  5 

need  not  be  expressed,  5 

may  be  implied,  5 

may  be  by  same  means  as  proposition,  5 

must  be  before  expiration  of  limit,  5 


Index.  169 

Requisites  of  contracts  ok  sale — Continued. 
iHuiject  of  sale,  5 

must  be  tiomething  which  is  the  subject  of  sale,  5 

a  hope  or  expectation  may  be  the  subject  of  sale,  5 

mere  possibility  or  contingency  not,  5 

if  subject  of  sale  has  ceased  to  exist  by  any  cause  at  time  o/ 
sale,  there  would  be  no  sale,  5 

if  price  had  been  paid,  it  may  be  recovered,  5 
Consideration,  6 

price  is  an  element  of  every  valid  sale,  6 

must  be  either  determined  or  determinable,  6 

need  not  be  paid  down,  6 

must  be  an  agreement  to  pay,  6 

law  implies  an  agreement  to  pay  what  property  is  reasonably 
worth,  6 

may  be  fixed  by  appraisement,  6 

or  quotations  upon  a  day  to  be  fixed,  G 

time  of  payment  may  by  contract  be  determinable  by  the  usual 
time  required  for  the  trip  of  a  ship,  6 
Transfer  of  property,  7 

has  been  held  not  essential  to  pass  title  to  property,  7 

becomes  essential  if  delivery,  by  the  terms  of  contract,  is  one 
of  the  conditions  thereof,  7 
Statutory  requirements — 
Statutes  of  frauds,  as  applied  to  sales,  8 
Provisions  of  statutes  of  various  states,  8 

prevalence  of  adoption,  8 

contracts  not  to  be  performed  within  a  year,  8 

must  be  in  writing,  signed  by  party  to  be  charged,  or  by  his 
agent,  9 

some  states,  statute  not  applicable  where  contract  by  its  terms 
does  not  indicate  that  it  is  not  to  be  performed  within  a  year,  9 

some  states,  he  who  is  authorized  to  sign  the  contract  or  memo- 
randum for  party  to  be  charged  must  be  authorized  in  writ- 
ing, 9 

contracts  for  sale  of  goods  in  excess  of  certain  sums  not  valid 
except  the  vendee  accept  and  receive  part  of  the  goods,  9 

or  some  note  or  memorandum  is  signed,  9 

or  some  thing  is  given  in  earnest,  9 

or  part  payment,  9 

in  Georgia,  statute  applicable  whether  goods  are  in  esse  or 
not,  10 

not  applicable  in  Iowa,  if  labor,  skill,  or  money  are  necessary  to 
produce,  10 

while  in  California  and  Dakota,  an  agreement  to  manufacture  is 
excepted,  10 


170  Index. 

Kequisites  op  contracts  ov  sale — Continued. 

statute  does  uot  abridge  powers  of  court  to  compel  specific  per 

formance,  10 
Affects  remedy  only — 
purpose  of  statutes,  10 
do  not  declare  contract  void,  10 
it  executed,  rights  of  parties  not  changed,  10,  11 
its  operation,  10,  11 

no  enforcement  of  contract  can  be  had  until  provisions  of  stat- 
ute have  been  comijlied  with,  11 
Application  of  statute — 

decisions  as  to,  varied  and  conflicting,  1 1 

shares  of  stock  and  choses  in  action — contracts  for  sale  of,  held 

not  within  the  statute,  1 1 
bank-notes,  promissory  notes,  shares  of  stock  in  an  incorporated 

company,  wheat,  cotton,  and  iron — contracts  for  sale  of,  held 

within  the  statute,  12 
auction  sales  are  within  statute,  12 
contracts  executory  not  excluded,  12 

nor  will  the  future  delivery  take  the  case  out  of  the  statute,  12 
but  if  skill,  labor,  care,  or  knowledge  is  to  be  used  in  producing, 

it  is  not  within  the  statute,  12 
contract  to  send  to  Europe  and  have  goods  manufactured  for 

another  is  a  contract  of  agency  and  not  of  sale,  13 
where  price  in  gross  of  articles  sold  at  same  time  exceed  sum 

designated  by  statute,  sale  will  fall  within  its  provisions,  13 
statute   does    not   apply  where   delivery  takes   place   within  a 

year,  1 3 
although  price  is  not  paid  until  after  the  lapse  of  that  time,  13 
Acceptance  of  goods — 

under  the  statutes  of  fraud,  acceptance  is  essential,  14 

vendee  must  both  accept  and  receive,  14 

there  may  be  an  actual  receipt  without  any  acceptance,  14 

so  may  there  be  an  acceptance  without  any  receipt,  14 

so  long  as  vendee  can,  without  self-contradiction,  declare  that 

the  goods  are  not  to  be  taken  in  full  payment  of  the  contract, 

he  has  not  accepted  them,  14 
immaterial  whether  his  refusal  be  reasonable  or  not,  14 
question  is  not  whether  he  ought  to  accept,  but  wlaether  he  has 

accepted,  15 
receipt  of  part  of  the  goods,  15 
or  acceptance  of  actual  control  is  sufficient,  15 
delivery  must  be  with   intent  of  vesting   the  right  of  posses 

sion,  15 
acceptance  must  also  be  with  intent  to  take  the  possession  as 

owner,  15 
no  act  of  the  vendor  alone  will  satisfy  the  statute,  15 


Index.  171 

BkQUISITES  op  CONTBACTS  op  sale — Continued. 

thoro  must  be  some  act  of  the  vendee,  15 

neither  is  mere  delivery  sufficient,  15 

there  must  be  acceptance  and  receipt,  15 

they  need    not  be   simultaneous   with   tlie   verbiil   contract  of 

sale,  15 
sufficient   if  they  take   place    within    a   reasonable  time  after- 
ward 15 
acceptance  may  be   by  sample,  if  that   taken   diminishes   the 

bulk,  15 
not  if  otherwise,  15 
Constructive  acceptance,  16 
acceptance  required  by  statute  may  be  constructive,  16 
question  whether  facts  proven  amount  to  a  constructive  accept- 
ance, is  one  of  fact,  not  of  law,  16 
if  facts  are  not  in  dispute,  it  belongs  to  the  court  to  determine 

their  legal  effect,  16 
acceptance  may  be  inferred  when  vendee  deals  with  the  goods 

as  his  own,  16 
as  taking  possession  of  bill  of  lading,  17 
marking   or  permitting  another  to  mark   goods  with  name  of 

vendee,  17 
acceptance  of  an  order  for  the  goods,  17 
acceptance  of  part  of  the  goods  sufficient,  17 
although  a  portion  is  still  to  be  manufactured,  17 
but  there  must  be  acts  of  such  a  character  as  to  place  the  goods 

within  the  power  of  the  vendee  as  absolute  owner,  17 
discharging  all  lien  for  the  price,  17 
delivery  to  a  common  carrier  would  constitute  a  receipt,  but  not 

an  acceptance, 17 
receipt   and   unpacking   of  the   goods   by  the   vendee   do   not 

amount  to  acceptance,  17 
unless  he  keep  them  for  an  unreasonable  time,  1 7 
there  is  no  acceptance,  unless  vendee  has  exercised  his  option 

to  receive  the  goods,  17 
or  has  done  something  to  deprive  him  of  his  option.  17 
Earnest  and  part  jiayment-' 

verbal  contract  valid,  and  proof  of  it  competent,  if  something 

in  earnest  of  part  payment  of  the  price  be  given,  18 
common  law  rule  not  changed  by  statute,  IS 
payment  may  be  shown  by  parol  evidence,  but  proof  of  tender 

is  not  competent,  IS 
there  must  be  an  actual  acceptance  of  the  money  tendered,  19 
not  sufficient  if  money  be  deposited  with  a  third  person.  19 
payment  must  be  in  money  or  its  equivalent,  19 
time  of  payment  is  not  essential,  except  in  New  York,  19 


172  Index. 

Requisites  oP  contracts  of  sale — Continued. 

may  be  at  time  of  sale  or  afterward,  19 

by  the  vendee  or  his  agent,  19 
Memorandum — its  form — 

statute  requires  evidence  that  the  agreement,  or  some  note  or 
memorandum  thereof,  be  in  writing,  19 

signed  by  party  to  be  charged  thereby,  19 

or  his  lawful  agent,  19 

unless  part  payment,  or  delivery  with  acceptance,  is  shown,  19 

form  of  memorandum  not  limited  by  statute,  19 

may  consist  of  a  telegram,  19 

a  bill  of  parcels,  19 

a  statement  of  account,  in  which  vendee  charges  himself  with 
goods  received,  19 

or  the  return  of  a  sheriff  on  execution,  20 

a  vote  of  a  corporation,  entered  on  their  records,  signed  by  their 
clerk,  20 

or  a  written  proposition,  if  supported  by  oral  evidence  of  accept- 
ance, 20 

any  number  of  papers  taken  together  may  make  out  the  note  or 
memorandum,  20 

but  each  must  be  signed  by  party  to  be  charged,  20 

and  all  the  elements  of  the  contract  must  appear,  20 

or  be  legally  presumable  by  what  is  stated.  20 
Parties — 

memorandum  should  show  who  are,  21 

if  signed  by  party  to  be  charged,  it  is  sufficient,  if  it  appear  with 
reasonable  certainty  who  other  party  is,  21 

thus  a  letter  addressed  to  vendor  and  signed  by  the  vendee,  21 

even  though  addressed  to  and  received  by  the  agent  of  the 
vendor,  21 

may  be  designated  by  their  initials,  21 

parol  evidence  being  admissible  to  apply  the  description,  21 
Price — 

no  price  having  been  agreed  upon,  none  need  be  stated  in  mem- 
orandum, 21 

law  presumes  a  promise  to  pay  a  reasonable  price,  21 

where  price  is  fixed,  that  is  part  of  the  bargain,  21 

and  must  be  shown  in  writing,  21,  22 

memorandum  being  silent  as  to  price,  parol  evidence  is  admissi- 
ble to  show  that  price  was  agreed  upon,  22 

price  being  indicated  in  the  memorandum  by  figures  or  letters, 
or  both,  it  is  sufficient  to  that  extent,  22 

or  if  it  appear  that  price  is  to  be  determined  by  arbitration,  22 

or  the  agreement  is  to  pay  same  for  which  the  property  had  been 
previously  sold,  22 

or  a  moderate  price,  22 


Index,  173 

Requisites  of  contracts  of  sale — Continued. 

memorandum  being  silent  as   to  time  of  payment,  a  cash  sale 
will  be  presumed,  22 

if  credit  is  given,  it  must  appear  in  memorandum,  22 

need  not  appear  whether  deferred  payments  are  to  be  with  in- 
terest, 22 

where  price  in  gross  of  articles  sold  at  same  time  exceed  sum 
designated  by  statute,  sale  will  fall  within  its  provisions,  13 
Signing — 

memorandum  must  be  signed  by  the  party  to  be  charged,  or  his 

agent,  23 
signature  must  be  some  mark  or  emblem  intended  to  denote  a 

signature,  23 
even  though  memorandum  be  in  party's  own  hand,  there  must  still 

be  a  signature,  23 
may  consist  of  a  mark,  or  initials,  23 
or  may  be  in  printing,  23 

or  by  stamp,  if  shown  to  have  been  adopted  as  a  signature,  23 
may  be  written  with  lead  pencil,  23 
location  of  signature  is  immaterial,  23 

may  be  in  the  body  of  the  paper,  or  at  the  beginning  or  end,  23 
must  be  with  intent  to  obligate,  23 
may  be  made  by  third  party  at  request,  and  in  presence  of  party 

to  be  charged,  23 
may  be  signed  by  duly  authorized  agent,  23 
or  by  a  stranger,  if  afterward  ratified,  23 
a  broker  or  auctioneer  is  agent  of  both  parties,  23 
memorandum  signed  by  him  is  suflBcient,  23 
SAFES— 

conditional  sales  of  sustained,  68 

measure  of  damages  for  breach  of  warranty  in  sales  of,  121 
SALE  OF  GOODS  TO  ARRIVE— 

can  be  either  an  executed  sale  subject  to  be  aefeatea  oy  non-ar- 
rival of  goods,  82 
or  an  executory  contract  to  sell  and  buy,  82 
the  English  cases  do  not  settle  what  language  it  is  necessary  to 

use,  83 
opinion  in  leading  case  by  Judge  Blackburn,  83 
quality,  quantity,  and  price  having  been  ascertained,  and  bill  of 

lading  assigned,  there  would  be  a  constructive  delivery,  84 
any  other  act  ecjuivalent  to  assignment  of  bill  of  lading,  eflfect 

held  to  be  the  same,  84 
SALE  OR  RETURN— 

explained  by  queen's  Dench,  81 

sale  with  right  to  return  within  a  reasonable  time,  81 


174  Index. 

Sale  or  return — Continued — 

property  passes  and  action  will  lie  for  price  if  not  returned  within 
a  reasonable  time,  81 

such  is  holding  of  our  courts,  81 

what  is  a  reasonable  time  is  a  question  of  law,  81 

to  be  determined  by  a  view  of  all  the  circumstances  of  the  partic- 
ular case,  81 

parol  evidence  of  conversation  of  the  partie?  is  admissible  to  show 
the  circumstances  under  which  contract  was  made,  81 

whether  vendee  has  terminated  sale  by  a  return  of  the  goods  is  a 
question  of  fact,  81 

if  vendee  materially  impair  the  condition  of  the  chattel,  he  can 
not  take  advantage  of  the  condition  under  which  it  was  de- 
livered, 82 

but  if  injury  be  occasioned  without  vendee's  fault,  it  has  sometimes 
been  held  not  to  lose  his  privilege  of  return,  82 
SALES  ON  TRIAL  OR  APPROVAL— 

no  sale  until  approval  is  given,  58 

either  expressly  or  by  implication,  58 

failure  to  return  in  time  specified  makes  sale  absolute,  58 

vendee  is  entitled  to  full  time  agreed  upon  for  trial,  58 

no  time  having  been  agreed  upon,  a  reasonable  time  will  be  pre- 
sumed, 58 

vendee  can  not  avoid  payment  by  failure  to  make  trial,  58 

nor  by  the  exercise  of  an  arbitrary  discretion,  58 

day  for  trial,  means  entire  day,  58 

if  trial  involves  consumption  of  what  is  tried,  it  becomes  question 
for  jury,  whether  quantity  consumed  was  more  than  was  neces- 
sary for  trial,  58 
SAW-MILLS— 

conditional  sales  of  sustained,  66 
SAMPLE,  SALES  BY— 

is  equivalent  to  sale  by  description,  92 

it  implies  that  goods  sold  are  of  the  quality  of  sample,  92 

goods  must  be  equal  to  sample  by  which  they  are  sold,  93 

in  Pennsylvania  it  is  a  guaranty  only  that  article  to  be  delivered 
shall  follow  its  kind  and  be  merchantable,  93 

sale  by  sample  must  exclude  an  opportunity  of  inspection,  93 

mnst  be  evidence  that  sale  by  sample  was  intended,  93 

both  parties  must  deal  with  sample  with  mutual  understanding 
that  bulk  is  like  it,  93 

whether  sale  is  by  sample  or  not  is  a  question  of  fact  to  be  left  to 
jury,  93 

vendor  not  being  manufacturer,  there  is  no  implied  warranty 
against  latent  defects  in  sample  or  bulk,  93 


Index.  175 

Sample,  Salfs  by — OmUnned. 

but  in  action  of  vendor  lor  price,  he  must  show  that  they  corre- 
spond with  the  sample,  94 
vendee  entitled  to  reasonable  time  to  te^;t  quality,  93 
if  defective,  might  set  up  damages  for  breach  of  warranty,  93 
though  not  offering  to  return  the  goods,  but  retaining  and  using 
them,  94 
Acceptance  by  sample — 

acceptance  under  statutes  of  frauds  may  be  by,  15 
that  taken  must  diminish  the  bulk,  15 
SEPARATION— 

sales  by   number,  weight,   or  measure,  not  complete  until  quan- 
tity is  ascertained,  30 
if  mixed  with  others  not  until  separated,  30 
that  portion  separated  becomes  property  of  vendee,  30 
no  difference  whether  contract  is  an   entirety  or  not,  30 
if  in  separation  property   deteriorates,   through   fault  of  the  ven- 
dor, vendee  is  not  bound  to  receive,  30 
in  a  contract  to  manufacture  goods  and  sell  them  to  another,  no 

property  in  material  passes,  30 
although  a  portion  of  the  price  be  paid,  30 
they  must  have  been  finished  and  set  apart  for  the  vendee,  30 
with  his  assent  and  acceptance,  30 
property  having  been  separated  title  will  pass,  30 
that  being  intent  of  parties,  30 

though  vendor  is  required  to  do  something  in  addition  thereto,  30 
SEWIXa  MACHINES— 

conditional  sales  of  sustained,  68 

rights  of  vendor  not  affected  by  replevin  of  machine,  68 
this  class  of  sales  are  neither  chattel  mortgages  nor  bailments,  68 
machine  being  voluntarily  given  up,  vendee  has  no  right  of  ac- 
tion, 08 

SHARES  OF  STOCK— 

contracts  for  sale  of,  held  not  within  the  statutes  of  frauds,  1] 

also  held  to  be  within,  12 
SOUNDNESS— 

sound  price  implies  a  warranty  of  soundness  is  a  much  questionod 
doctrine,  101 

relates  only  to  secret  defects  which  can  not  by  ordinary  skill  and 
diligence  be  discovered,  101 

such  a  warranty  not  excluded  by  a  written  contract  of  sale  con- 
taining an  express  warranty  of  title,  101 

sale  by  maker  implies  a  warranty  against  latent  defects  growing 
out  of  the  process  of  manufacture,  101 


176  Index. 

Soundness — Continued. 

but  if  unsoundness  is  understood  and  price  is  lesson  that  account, 
no  warranty  arises,  101 

vendee  liable  for  a  defect  known  to  him  and  undisclosed,  101 

perishable  goods  sold  to  be  shipped  to  distant  market  implied  war- 
ranty arises  that  they  are  properly  packed,  101 

not  that  they  will  continue  sound  for  any  particular  period,  102 

unforeseen  contingencies  not  covered  by  implied  warranty,  102 

proof  of  worthlessness  of  goods  received  not  admissible  to  defeat 
vendor's  claim  for  price,  102 

on  sale  of  provisions  as  merchandise  no  implied  warranty  arises 
that  all  are  sound,  102 

warranty  that  provisions  are  wholesome,  if  implied  at  all,  arises 
only  where  sold  for  immediate  domestic  use,  102 

if  sold  for  immediate  domestic  use,  vendor,  at  his  peril,  is  bound 
to  know  they  are  sound  and  wholesome,  102 

if  not  so  he  is  liable  on  suit  of  vendee,  102 
SPECIAL  PURPOSE— 

manufacturer  or  dealer  contracting  to  supply  article  for  particu- 
lar purpose  there  is  an  implied  warranty  that  it  shall  be  reason 
ably  fit  for  that  purpose,  95 

on  sale  by  manufacturer  there  is  implied  warranty  that  it  will  an- 
swer purpose  for  which  made,  95 

if  vendee  inspects  the  article  there  is  no  warranty,  95 

vendor  not  being  manufacturer  and  particular  use  is  not  commu- 
nicated there  is  no  implied  warranty,  95 

vendor  being  manufacturer  there  is  implied  warranty  of  fitness 
for  special  purpose,  95 

particular  use  not  being  disclosed,  there  would  be  implied  warranty 
of  reasonable  fitness  for  purpose  for  which  ordinarily  used,  95 

if  manufactured  in  accordance  with  specific  directions  given,  no 
implied  warranty  arises,  96 

sufficient  if  article  so  manufactured  fill  the  terms  of  contract,  96 

manufacturer  who  for  a  fair  price  undertakes  to  manufacture  for 
a  particular  purpose  impliedly  warrants  that  it  will  perform  all 
operations  and  purpose  of  articles  of  a  particular  kind,  96 

not  of  articles  of  a  different  kind  though  of  same  general  class,  96 

purpose  being  made  known  to  manufacturer,  warranty  arises  not 
only  that  article  is  fit  for  such  purpose,  but  free  from  latent  de- 
fects, 96 

rule  applied  to  sales  of  steam  boilers,  96 

leather  by  a  manufacturer  to  a  shoemaker,  96 

pianos  to  a  dealer,  96 

a  wind-mill,  96 

and  whisky  barrels,  96 


Index  177 

Spbcial  prRPOSE — Cnntinued. 

material  to  be  used  being  specified,  manufacturer  not  liable  upon 

implied  warranty  thereof,  96 
having  exercised  ordinary  diligence  in  selecting  material,  96 
special  tiling  being  ordered,  though  for  special  purpose,  warranty 

does  not  arise,  97 
same  true  of  sale  of  specific  article  selected  by  vendee.  97 
if  sale  be  of  specific  article  in  its  then  state,  there  is  no  implied 

warranty  of  fitness  or  merchantable  quality,  97 
but  if  sold  for  particular  purpose  there  would  be,  97 
failure  of  warranty  ground  of  rescission  of  contract,  97 
part  payment,  in   ignorance  of  unfitness,  will  not  estop  vendee 

from  setting  up  breach,  97 
vendee  seeking  rescission,  where  it  is  his  duty  to  expend  labor 

and  skill,  impliedly  warrants  that  unfitness  is  not  occasioned  by 

his  fault,  97 

SPECIFIC  PERFORMANCE— 

statutes  of  frauds  does  not  abridge  powers  of  court  to  compel,  10 

STATUTE  OF  FRAUDS,  as  applied  to  sales,  8 
Provisions  of  statutes  of  various  states,  8 

prevalence  of  adoption,  8 

contracts  not  to  be  performed  within  a  year  must   be  in  writing, 
signed  by  the  party  to  be  charged,  or  by  his  agent,  9 

some  states,  statute  not  applicable  where  contract  does  not  indi- 
cate that  it  is  not  to  be  performed  within  a  year,  9 

some  states,  he  who  is  authorized  to  sign  the  contract  or  memo- 
randum for  party  to  be  charged  must  be  authorized  in  writing,  9 

contracts  for  sale  of  goods  in  excess  of  certain  sums  not  valid,  ex- 
cept the  vendee  accept  and  receive  part  of  the  goods,  9 

or  some  note  or  memorandum  is  signed,  9 

or  some  thing  is  given  in  earnest,  9 

or  part  payment,  9 

in  Georgia,  statute  applicable  whether  goods  are  in  esse  or  not.  10 

not  apijlicable  in  Iowa,  if  labor,  skill,  or  money  are  necessary  to 
produce,  10 

while  in  California  and  Dakota,  an  agreement  to  manufacture  is 
excepted,  10 

statute  does  not  abridge  powers  of  court  to  compel  specific  per- 
formance, 10 
Affects  remedy  only — 

purpose  of  statutes,  10 

do  not  declare  contract  void,  10 

if  executed,  rights  of  parties  not  changed,  10,  11 

its  operation,  10,  11 

12 


178  Index. 

Statute  of  T^A^r^'?:— Continued. 

no  enforcement  of  contract  can  be  liad  until  provisions  of  statute 

have  been  complied  with,  11 
Application  of  sUitutrs  of  frauds — 

decisions  as  to  varied  and  conflicting,  i  I 

shares  of  stock  and  choses  in  action,  contracts  for  sale  of.  held  not 

within  the  statute,  1 1 
bank  notes,  promissory  notes,  shares  of  stock  in  an   incorporated 

company,  wheat,  and  iron,  contracts  for  sale  of,  field  within  the 

statute,  12 
auction  sales  are  within  statute,  12 
contracts  executory  not  excluded,  12 

nor  will  the  future  delivery  take  the  case  out  of  the  statute,  12 
but  if  skill,  labor,  care,  or  knowledge  is  to  be  used  in  producing, 

it  is  not  within  the  statute,  12 
an  agreement  to  manufacture  is  not  within  the  statute,  12 
contract   to   send   to   Europe  and   have  goods  manufactured  for 

another  is  a  contract  of  agency,  and  not  of  sale,  13 
where  price  in  gross  of  articles  sold  at  same  time  exceed  sum 

designated  by  statute,  sale  will  fall  within  its  provisions,  13 
statute  does  not  apply  where  delivery  takes  place  within  a  year,  13 
although  price  is  not  paid  until  after  the  lapse  of  that  time,  13 
Acceptance  of  goods  under  the  statutes  of  fraud — 
acceptance  is  essential,  14 
vendee  must  both  accept  and  receive,  14 
there  may  be  an  actual  receipt  without  any  acceptance,  14 
60  there  may  be  an  acceptance  without  any  receipt,  14 
so  long  as  vendee  can,  without  self-contradiction,  declare  that  the 

goods  are  not  to  be  taken  in  fulfillment  of  the  contract,  he  has 

not  accepted  them,  14 
immaterial  whether  his  refusal  be  reasonable  or  not,  14 
question  not  whether  he  ought  to  accept,  but  whether  he  has  ac- 
cepted, 15 
receipt  of  part  of  the  goods,  15 
or  acceptance  of  actual  control  is  sufficient,  15 
delivery  must  be  with  intent  of  vesting  right  of  possession,  15 
acceptance   must  also  be  with  intent  to  take  the  possession  as 

owner,  15 
no  act  of  vendor  alone  will  satisfy  the  statu'      15 
there  must  be  some  act  of  the  vendee,  15 
mere  delivery  is  not  sufficient,  15 
there  must  be  acceptance  and  receipt,  15 

they  need  not  be  simultaneous  with  the  verbal  contract  of  sale,  15 
sufficient  if  they  take  place  within  a  reasonable  time  afterward,  15 
acceptance  may  be  by  sample,  if  that  taken  diminishes  the  buifc,  15 
not,  if  otherwise,  15 


Index.  179 

Stitute  of  frauds — Continued. 

Chnstrucl'ive  acceptance  under  the  statute  of  frauds — 

acceptance  required  by  statute  may  be  constructive,  16 

question  whether  facts  proven  amount  to  a  constructive  accept- 
ance is  one  of  fact,  not  of  law,  IG 

if  facts  are  not  in  dispute,  it  belongs  to  the  court   to  ietermine 
their  legal  effect,  16 

acceptance  may  be  inferred  when  vendee  deals  with  tlie  goods  aa 
his  own,  16 

as  taking  possession  of  bill  of  lading,  17 

marking  or  ))ermitting  another  to  mark  goods  with  name  of  ven- 
dee, 17 

acceptance  of  an  order  for  the  goods,  17 

acceptance  of  part  of  the  goods,  17 

although  a  portion  is  still  to  be  manufactured,  17 

but  there  must  be  acts  of  such  a  character  as  to  place  the  goods 
within  the  power  of  the  vendee  as  absolute  owner,  17 

discharging  all  lien  for  the  price,  17 

delivery  to  a  common  carrier  would  constitute  a  receipt,  but  not 
an  acceptance,  17 

receipt  and  unpacking  do  not  amount  to  acceptance,  1 7 

unless  goods  are  kept  an  unreasonable  time,  17 

vendee  must  exercise  his  option  to  receive,  17 

or  have  done  something  to  deprive  him  of  his  option,  17 
Earnest  and  part  payment — 

verbal  contract  valid,  and  proof  of  it  competent  if  eometbing  in 
earnest  or  part  payment  of  the  price  be  given,  18 

common-law  rule  not  changed  by  statute,  18 

payment  may  be  shown  by  parol  evidence,  18 

but  proof  of  tender  is  not  competent,  18 

money  tendered  must  be  actually  accepted,  19 

not  sufficient  if  money  deposited  with  a  third  person,  19 

payment  must  be  in  money  or  its  equivalent,  19 

time  of  payment  is  not  essential,  except  in  Xew  York,  19 

may  be  at  time  of  sale  or  afterward,  19 

by  the  vendee  or  his  agent,  19 
Memorandum,  its  form — 

statute  requires  evidence  that  the  -agreement  or  some  note  or  memo- 
randum thereof  be  in  Avriting,  19 

^gned  by  tiie  party  to  be  charged  thereby,  19 

or  his  lawful  agent,  19 

unless  part  payment,  or  delivery  with  acceptance  is  shown,  19 

form  of  memorandum  not  limited  by  statute,  19 

may  consist  of  telegram,  1 9 

a  bill  of  parcels,  19 


180  Index. 

Statute  op  frattds — Continued. 

a  statc-ment  of  account,  in  which  vendee  charges  himself  with 
goods  received,  19 

or  the  return  of  a  sheriflF  on  execution,  20 

a  vote  of  a  corporation  entered  on  their  recoras  and  signed  by 
their  clerk,  20 

or  a  ^vritten  proposition,  if  supported  by  oral  evidence  of  accept- 
ance, 20 

any  number  of  papers  taken  together  may  make  out  the  note  or 
memorandum,  20 

but  each  must  be  signed  by  party  to  be  charged,  20 

all  the  elements  of  contract  must  appear,  20 

or  be  legally  presumable  by  what  is  stated,  20 
Parties — • 

memorandum  should  show  who  are,  21 

if  signed  by  party  to  be  charged,  it  is  sufficient  if  it  appear  with 
reasonable  certainty  who  other  party  is,  21 

thus  a  letter  addressed  to  vendor  and  signed  by  the  vendee,  21 

even  though  addressed  to  and  received  by  the  agent  of  the  ven- 
dor, 21 

may  be  designated  by  their  initials,  21 

parol  evidence  being  admissible  to  apply  the  description,  21 
Price — 

no  price  having  been  agreed  upon,  none  need  be  stated  in  memo- 
randum, 21 

law  presumes  a  promise  to  pay  a  reasonable  price,  21 

where  price  is  fixed,  that  is  part  of  the  bargain,  21 

and  must  be  shown  in  writing,  21,  22 

memorandum  being  silent  as  to  price,  parol  evidence  is  admissi- 
ble to  show  that  price  was  agreed  upon,  22 

price  being  indicated  in  the  memorandum  by  figures  or  letters  or 
both,  it  is  sufficient  to  that  extent,  22 

or  if  it  appear  that  price  is  to  be  determined  by  arbitration,  22 

or  the  agreement  is  to  pay  same  for  which  the  property  had  been 
previously  sold,  22 

or  a  moderate  price,  22 

memorandum  being  silent  as  to  time  of  payment,  a  cash  sale  will 
be  presumed,  22 

if  credit  is  given,  it  must  appear  in  memorandum,  22 

need  not  appear  whether  deferred  payments  are  to  be  with  inter- 
est, 22 

where  price  in  gross  of  articles  sold  at  same  time  exceed  sum 
designated  by  statute,  sale  will  fall  within  its  provisions,  13 
Signing — 

memorandum    must  be  signed  by  the  party  to  be  charged,  or  his 
agent,  23 


Index.  181 

Statute  of  frauds — Continued. 

signature  must  be  some  mark  or  emblem  intended  to  denote  a 
signature,  23 

even  though  memorandum  be  in  party's  own  hand,  there  must  be 
a  signature,  23 

may  consist  of  a  mark  or  initials,  23 

or  may  be  in  printing,  23 

or  by  stamp,  if  shown  to  have  been  adopted  as  a  signature,  23 

may  be  written  with  lead  pencil,  23 

location  of  signature  is  immaterial,  23 

may  be  in  body  of  the  paper;  or  at  the  beginning  or  end,  23 

must  be  with  intent  to  obligate,  23 

may  be  made  by  third  party,  at  request  and  in  presence  of  party 
to  be  charged,  23 

may  be  signed  by  the  duly  authorized  agent,  23 

or  by  a  stranger  if  afterward  ratified,  23 

a  broker  or  auctioneer  is  agent  of  both  parties,  23 

memorandum  signed  by  him  is  sufficient,  23 
STATUTORY  REQUIREMENT,  77 

only  applicable  to  contracts  containing  express  conditions  of 
sale,  78 

in  many  states,  to  be  valid  as  against  third  parties,  contract  must 
be  filed  as  chattel  mortgage,  78 

filing  must  be  in  town  or  township  where  vendee  resides,  78 

except  in  New  Hampshire,  Vermont,  and  Nebraska,  where,  if 
vendee  is  a  non-resident,  filing  may  be  at  residence  of  ven- 
dor, 78 

in  Vermont,  such  filing  must  be  within  thirty  days  of  the  sale,  78 

in  New  Hamj)shire,  time  shortened  to  ten  days,  78 

eflfect  of  record  will  not  extend  beyond  one  year  in  Wisconsin,  78 

and  five  in  Nebraska,  78 

unless  renewed  from  time  to  time,  78 

contract  good  in  other  states  without  filing,  78 

only  a  note  or  other  evidence  of  indebtedness  given,  is  void  as 
against  creditors  and  subsequent  purchasers,  unless  recorded,  79 

in  New  York  and  Minnesota,  record  ceases  to  be  noticed  after  one 
year,  79 

in  New  York,  provisions  of  statute  do  not  apply  to  sales  of  house- 
hold goods,  pianos,  engines,  and  machinery,  79 

if  contract  is  executed  in  duplicate,  79 

in  New  Hampshire,  aflSdavit  of  good  faith,  signed  by  both  parties 
is  required,  79 

foreclosures,  mode  of,  prescribed  in  but  few  states,  79 

in  New  York  and  Vermont,  vendor  may  retake  the  property  thirty 
days  after  condition  broken,  79 

but  in  Maine,  property  is  subject  to  redemption,  79 


182  Index. 

Statutory  REpriREMENT —  Continued. 

in  Missouri  and  Oliio,  it  is  unlawful  for  vendor  to  seize  the  prop- 
erty without  refunding  a  portion  of  payments,  79 

statutes  not  interpreted  by  courts,  79 

can  only  apply  where  vendor  seeks  to  take  jiossession  without  in- 
tervention of  law,  79 

can  not  abridge  remedial  rights,  79 

statutes  not  applicable  in  sales  on  consignment,  80 

nor  sales  to  an  agent  or  sub-agent  of  vendor,  80 
STOCK— 

conditional  sales  of,  do  not  cover  increase  accruing  before  per- 
formance of  condition,  65 

increase  belongs  to  vendor,  65 

need  not  be  mentioned  in  memorandum,  65 

to  protect  vendor's  title  to  increase,  even  against  a  bona  fide  pur- 
chaser, 65 
STOLEN  OR  LOST  PROPERTY— 

no  title  can  be  acquired  in  stolen  or  lost  property,  4 

may  be  recovered,  4 
SUBJECT  OF  SALE— 

a  hope  or  expectation  may  be,  5 

mere  possibility  or  contingency  not,  5 

if  subject  of  sale  has  ceased  to  exist  at  time  of  sale,  there  would 
be  no  sale,  5 

if  price  had  been  paid,  it  may  be  recovered,  5 

SYMBOLICAL,  OR  CONSTRUCTIVE  DELIVERY— 
rule  formulated  by  Lord  Ellenborough,  34 
where  goods  are  ponderous,  delivery  may  be,  34 
each  case  dependent  upon  nature  and  situation  of  property,  35 
delivery  of  deed  of  transfer  of  ship  at  sea  passes  title,  35 
cargo  may  be  transferred  by  bill  of  lading  or  invoice,  35 
in  each  case  must  be  with  intent  to  transfer  title,  35 

TELEG  RAM- 
acceptance  of  proposition  may  be  by,  5 

TENDER— 

if  proper,  is  equivalent  to  payment,  54 

requires  a  production  and  offer  to  vendor  of  an  amount  of  money 
equal  to  price,  54 

production  of  money  may  be  dispensed  with  by  vendor,  54 

the  mere  offer  to  pay  does  not  amount  to  a  tender,  54 

if  vendee  is  prevented  from  producing  the  money  by  the  contriv- 
ance or  evasion  of  vendor,  it  will  be  a  sufficient  excuse,  54 

tender  of  larger  sum  than  due,  with  demand  for  change,  is  not 
good,  54 

nor  of  a  part  of  the  sum  due,  55 


Index.  183 

Tender —  Continued. 

may  tender  gross  amount  of  several  demands,  55 

tender  of  balance  due,  after  deducting  set-off,  not  good,  55 

may  pay  entire  sum  due  into  court,  and  then  plead  a  set-off,  55 

offer  of  a  promissory  note  signed  by  vendor  is  not  a  good  ten* 
der,  55 

vendee  has  no  right  to  insist  that  vendor  shall  admit  that  no  more 
is  due,  55 
THRESHING  MACHINES— 

conditional  sales  of,  sustained,  66 

conditions  may  be  embodied  in  note,  66  - 

representations  that  it  is  a  good  machine  do  not  amount  to  a  war- 
ranty, 123 

execution  of  renewal  notes,  held  presumptive  evidence  of  waiver 
of  damages  for  breach  of  warranty,  127 
TIME  OF  DELIVERY— 

where  contract  expresses  the  time  of  delivery,  it  is  a  question  of 
construction  for  the  court,  38 

when  not  fixed  by  contract,  must  be  within  a  reasonable  time,  34 

month  is  construed  as  a  calendar  month,  38 

unless  contrary  meaning  clearly  indicated,  38 

certain  number  of  days  construed  as  consecutive,  39 

Sundays  included,  39 

day  of  making  contract  should  be  excluded  in  computing  time,  39 

between  two  days  includes  the  last  day,  39 

readiness  at  time  and  place  designated  held  sufficient,  39 

place  not  being  designated,  tender  a  convenient  time  before  mid- 
night sufficient,  39 

place  being  designated,  tender  must  be  during  day  light,  and  a 
convenient  time  before  sunset,  39 

contract  to  deliver  "  as  fast  as  produced  "  construed,  39 

"prompt  shipment"  construed,  39 

contract  to  ship  within  "certain  specified  months"  construed,  40 

delivery  and  acceptance  after  the  agreed  time  does  not  of  itself 
work  a  reduction  of  price,  40 

if  notes  are  given  for  goods  to  be  delivered  at  a  future  day,  a  fail- 
ure to  so  deliver  will  constitute  a  failure  of  consideration,  40 
TITLE— 

only  the  owner,  his  agent,  or  legal  representatives  can  give  valid 
title,  4 

who  are  legal  representatives,  4 

vendee  acquires  no  better  title  than  his  vendor,  4 

title  can  not  be  acquired  to  lost  or  stolen  property,  4 

lost  or  stolen  property  may  be  recovered,  4 
Warranbi  of  title — 

arises  where  one  in  possession  of  property  sells  it  as  nis  own,  88 


184  Index. 

Title —  Continued. 

unless  circumstances  show  intent  to  transfer  interest  only,  88 

held  that  possession  is  equivalent  to  an  affirmation  of  title,  88 

held  that  warranty  of  title  is  always  implied,  88 

though  nothing  whatever  is  said  about  title,  88 

same  rule  applies  in  settlement  between  debtor  and  creditor,  88 

where  property  wholly  outside  of  difference  between  the  parties 

is  given  in  payment,  88 
caveat  emptor  applies  if  possession  be  in  another,  88 
constructive  possession  is  sufficient  to  warrant  title,  89 
not  essential  to  have  immediate  physical  control,  89 
no  implied  warranty  if  vendor  have  neither  title  nor  possession  at 

time  of  sale,  89 
where  title,  and  not  the  thing  itself,  is  subject  of  sale,  there  is  no 

implied  warranty,  89 
but  after  acquired  title  will  inure  to  benefit  of  vendee,  89 
subject  of  sale  being  exclusive  right  to  manufacture  there  is  t^ 

warranty  of  title,  89 
written  bill  of  sale  containing  no  warranty,  one  can   not  be  im- 
plied, 89 
no  implied  warranty  of  title  in  sales  by  a  known  agent,  89 
administrators,  executors,  or  sheriff,  or  other  officer  of  law,  89 
nor  on  execution  sales,  89 
TRANSFER  OF  PROPERTY— 

held  not  essential  to  pass  title,  7 

becomes  essential,  if  delivery,  by  the  terms  of  contract,  is  one  of 

the  conditions  thereof,  7 
VOLUNTARY  ASSENT— 

of  competent  parties  essential  in  contracts  of  sale,  5 
WARRANTIES,  IMPLIED— 

warranty  not  an  essential  element  of  contract,  86 

it  is  a  collateral  undertaking,  a  mere  incident,  86 

forms  part  of  contract  by  agreement,  86 

are  of  two  kinds,  implied  or  expressed,  86 

a  mere  contract  of  sale  does  not  imply  a  warranty,  86 

element  of  intent  necessary  to  constitute  a  warranty,  86 

where  there  is  no  express  warranty,  an  implied  warranty  m**^ 

arise,  86 
written  memorandum   containing  express  warranties  upon  some 

points  does  not  preclude  warranty  otherwise  implied  by  law,  86 
vendor  refusing  to  warrant,  there  can  be  no  pretense  of  raising  an 

implied  warranty,  86 
what  amounts  to  a  refusal  to  warrant  is  a  question  for  jury,  87 
evidence  of  usace  inadmissible  to  affect  an  implied  warranty,  87 
doctrine  of  implied  warranties  applies  to  property  exchanged,  87 


Index.  186 

Warranties,  Implied — CoiHinned. 

may  arise  in  case  of  executory  contract  where  defect  is  incapable 

of  discovery  at  time  of  sale,  87 
in  such   cases  vendee  may   retain   property  and   sue  upon   war- 
ranty, 87 
warranty  will  not  be  implied  to  cover  defects  visible,  87 
caveat   emptor   applies   where  vendee   has    an    opportunity  to  in- 
spect, 87 
caveat  emptor  not  iipplicable  to  sales  of  drugs,  87 
Warranty  of  title — 
arises  where  one  in  j^ossession  of  property  sells  it  as  his  own,  88 
unless  circumstances  show  intent  to  transfer  interest  only,  88 
held  that  possession  is  equivalent  to  an  affirmation  of  title,  88 
held  that  warranty  of  title  is  always  implied,  88 
though  nothing  whatever  is  said  about  title,  88 
same  rule  applies  in  settlement  between  debtor  and  creditor,  88 
where  property  wholly  outside  of  difference  between  the  p9,rtie8  is 

given  in  payment,  88 
caveat  emptor  applies  if  possession  be  in  another,  88 
constructive  possession  is  sufficient  to  warrant  title,  89 
not  essential  to  have  immediate  physical  control,  89 
no  implied  warranty  if  vendor  have  neither  title  nor  possession  at 

time  of  sale,  89 
where  title,  and  not  the  thing  itself,  is  subject  of  sale,  there  is  no 

implied  warranty,  89 
but  after  acquired  title,  will  inure  to  benefit  of  vendee,  89 
subject  of  sale  being  exclusive  right  to  manufacture,  there  is  a 

warranty  of  title,  89 
written  bill  of  sale  containing  no  warranty,  one  can  not  be  im- 
plied, 89 
no  implied  warranty  of  title  in  sales  by  a  known  agent,  89 
administrators,  executors,  or  sheriff,  or  other  officer  of  law,  89 
nor  on  execution  sales,  89 
Quality,  warranty  of — 
on  a  fair  sale,  no  implied  warranty  of,  90 
caveat  emptor  applies  in  absence  of  fraud,  90 
warranty  will  not  be  implied  from  payment  of  full  price,  91 
vendee  may  rely  upon  supposition  that  vendor  knows  condition 

and  quality  of  goods,  91 
unreasonable  rules  of  board  of  trade  as  to  inspection  of  provisions 

does  not  apply,  91 
representations  made  by  vendor  relied  upon  by  vendee  amount  to 

a  warranty,  91 
words  of  description  in  contract  or  bill  of  parcels  will  not  amount 

to  a  warranty,  91 
nor  will  a  mere  praise  of  personal  property,  if  vendee  has  an  op- 
portunity to  examine,  91 


186  Index. 

Warranties,  Implied — Continued. 

where  goods  are  open  to  inspection  and  are  examined,  there  is  no 
implied  warranty  of  quality   91 

same  rule  applies  where  goods  are  in  possession  of  vendee  at  time 
of  sale,  91 

no  implied  warranty  of  quality  beyond  conformity  to  model  or  de- 
sign in  sales  by,  91 

vendor  who  makes  no  warranty  or  assurance  can  not  be  answer- 
able for  defects,  latent  or  otherwise,  of  which  he  had  no  knowl- 
edge, 91 

question,  of  warranty  of  quality  is  for  court,  if  contract  of  sale  is 
made  solely  by  correspondence,  92 
Sale  by  sample — 

is  equivalent  to  sale  by  description,  92 

it  implies  that  goods  sold  are  of  the  quality  of  sample,  92 

goods  must  be  equal  to  sample  by  which  they  are  sold,  93 

in  Pennsylvania,  it  is  a  guaranty  only  that  article  to  be  delivered 
shall  follow  its  kind  and  be  merchantable,  93 

sale  by  sample  must  exclude  an  opportunity  of  inspection,  93 

must  be  evidence  that  sale  by  sample  was  intended,  93 

both  parties  must  deal  with  sample,  with  mutual  understanding 
that  bulk  is  like  it,  93 

whether  sale  is  by  sample  or  not  is  a  question  of  fact  to  be  left  to 
jury,  93 

vendor  not  being  manufacturer,  there  is  no  implied  warranty 
against  latent  defects  in  sample  or  bulk,  93 

but  in  action  of  vendor  for  price,  he  must  show  that  they  corre- 
spond with  the  sample,  93 

vendee  entitled  to  reasonable  time  to  test  quality,  93 

if  defective,  might  set  up  damages  for  breach  of  warranty,  93 

though  not  offering  to  return  the  goods,  but  retaining  and  using 
them,  94 
Description — 

sales  of  article  known  in  the  market  by  a  particular  name,  a  war- 
ranty is  implied  that  article  is  of  kind,  character,  and  descrip- 
tion, 94 

vendee  not  having  seen  the  article,  and  meaning  of  description 
being  known  to  the  parties,  94 

not  necessary  that  article,  when  delivered,  should  be  of  any  certain 
quality  of  the  brand,  94 

in  absence  of  fraud,  vendor  can  only  be  called  upon  to  deliver 
article  of  the  specified  brand,  94 
Special  purpose — 

manufacturer  or  dealer  contracting  to  supply  article  for  particular 
purpose,  there  is  an  implied  wari'anty  that  it  shall  be  reasonably 
fit  for  purpose,  95 


In<hx.      *  187 

Warranties,  Implied — Omtiymed. 

on  sale  by  manufacturer,  there  is  implied  warranty  that  it  will  an- 
swer purpose  for  which  made,  95 

if  vendee  inspects  the  .-irtiole,  there  is  no  warranty,  95 

vendor  not  being  manufacturer,  and  particular  use  is  not  commu- 
nicated, there  is  no  implied  warranty,  95 

vendor  being  manufacturer,  there  is  implied  warranty  of  fitness 
for  special  purpose  95 

particular  use  not  being  disclosed,  there  would  be  implied  war- 
ranty of  reasonable  fitness  for  purpose  for  which  ordinarily 
used,  95 

if  manufactured  in  accordance  with  specific  directions  given,  no 
implied  warranty  arises,  96 

sufficient  if  article  so  manufactured  fill  the  terms  of  contract,  96 

manufacturer  who  for  a  fair  price  undertakes  to  manufacture  for 
a  particular  purpose,  impliedly  warrants  that  it  will  perform 
all  operations  and  purpose  of  articles  of  particular  kind,  96 

not  of  articles  of  a  different  kind,  though  of  same  general  class,  96 

purpose  being  made  known  to  manufacturer,  warranty  arises  not 
only  that  article  is  fit  for  such  purpose,  but  free  from  latent  de- 
fects 96 

rule  applied  to  sales  of  steam  boilers,  96 

leather  by  a  manufacturer  to  a  shoemaker,  90 

pianos  to  a  dealer,  96 

a  wind-mill,  96 

and  whisky  barrels  96 

material  to  be  used  being  specified,  manufacturer  not  liable  upon 
implied  warranty  thereof,  96 

having  exercised  ordinary  diligence  in  selecting  material,  96 

special  thing  being  ordered,  though  for  special  purpose,  warranty 
does  not  arise,  97 

same  true  of  sale  of  specific  article  selected  by  vendee,  97 

if  sale  be  of  specific  article  iu  its  then  state,  there  is  no  implied 
warranty  of  fitness  or  merchantable  quality,  97 

but  if  sold  for  particular  purpose  there  would  be,  97 

failure  of  warranty  ground  of  rescission  of  contract,  97 

part  payment,  in  ignorance  of  unfitness,  will  not  estop  vendee 
from  setting  up  breach,  97 

vendee  seeking  rescission,  where  it  is  his  duty  to  expend  labor 
and  skill  impliedly  warrants  that  unfitness  is  not  occasioned  by 
his  fault.  97 
Merchantable  character — 

merchandise  sold  to  arrive,  which  neither  party  can  inspect  caveat 
venditor  should  apply,  99 

there  is  implied  engagement  that  article  should  be  merchant- 
able, 99 


188  Index. 

Warranties,  Implied — Continued. 

same  rule  applies  where  manufacturer  or  dealer  undertakes  to 
supply  article,  99  • 

vendee  not  havinjr  opportunity  to  inspect,  99 

rule  of  board  of  tr;ide  will  have  no  application  to  prevent  implied 
warranty,  99 

rule  of  implied  warranty  of  merchantable  character  is  extended 
to  merchants,  99 

no  implied  warranty,  where  vendee  has  equal  opportunity  for 
knowledge,  and  vendor  is  not  the  manufacturer,  99 

in  complete  contract,  there  being  no  warranty,  false  representa- 
tions, or  fraudulent  concealments,  vendee  takes  property  re- 
gardless of  defects,  99 

in  executory  contracts  obligation  always  arises  that  article  shall 
be  merchantable,  99 

at  least  without  any  unreasonable  defect,  100 

vendee  can  not  insist  that  article  shall  be  of  any  special  degree  of   ' 
fineness,  100 

he  may  insist  that  it  shall  be  of  medium  quality  or  goodness,  100 

free  from  such  defects  as  would  render  it  unmerchantable,  or  un- 
fit for  purpose  for  which  ordinarily  used,  100 

rule  applied  to  sale  of  wheat,  gnano,  superphosphate,  ice,  and 
lumber,  100 

rule  does  not  apply  to  sales  of  residuum,  or  refuse  of  manufactur- 
ing establishments,  100 
Soundness — 

sound  price  implies  a  warranty  of  soundness  is  a  much  questioned 
doctrine,  101 

relates  only  to  secret  defects  which  can  not  by  ordinary  skill  and 
diligence  be  discovered,  101 

such  a  warranty  not  excluded  by  a  written  contract  of  sale  con- 
taining an  express  warranty  of  title,  lUl 

sale  by  maker  implies  a  warranty  against  late-nt  defects  growing 
out  of  the  process  of  manufacture,  101 

but  if  unsoundness  is  understood,  and  price  is  less  on  that  ac- 
count, no  warranty  arises,  101 

vendee  liable  for  a  defect  known  to  him  and  undisclosed,  101 

perishable  goods  sold  to  be  shipped  to  distant  market  implied 
warranty  arises  that  they  are  properly  packed,  101 

not  that  they  will  continue  sound  for  any  particular  period,  102 

unforeseen  contingencies  not  covered  by  implied  warranty,  102 

proof  of  worthlessness  of  goods  received  not  admissible  to  de- 
feat vendor's  claim  for  price,  102 

on  sale  of  provisions  as  merchandise  no  implied  warranty  arises 
that  all  are  sound,  102 


Index.  189 

Warbantiks,  Implied — Continued. 

warranty   that  provisions  are  wholesome,  if  implied  at  all,  arises 

only  where  sold  ior  immediate  domestic  use,  102 
if  sold  for  immediate  domestic  use,  vendor,  at  his  peril,  is  bound 

to  know  they  are  sound  and  wholesome,  102 
if  not  so  he  is  liable  on  suit  of  vendee,  102 
Express  warranties — 

What  amounts  to  a  v)arranty — 
no  precise  form  of  expression  required,  103 
must  be  an  affirmation  to  the  quality  or  condition  of  the  thing 

sold  made  at  the  time  of  sale,  103 
must  be  with  purpose  of  assuring  the  vendee,  and  inducing  him 

to  purchase,  103 
and  must  have  been  so  received  and  relied  on  by  vendee,  103 
distinction  as  to  legal  effect  of  expressions,  103 
when  representation  is  positive,  and  relates  to  a  matter  of  fact, 

it  constitutes  a  warranty,  103 
when  it  is  a  matter  of  opinion,  or  fancy,  it  does  not  amount  to 

a  warranty,  103 
also  depends  upon  understanding  or  intent  of  parties,  103 
representations  to  be  relied  on  to  make  a  warranty,  must  be  so 

made  as  to  show  that  vendor  intended  to  be  bound,  104 
and  must  have  been  relied  upon  by  the  vendee,  104 
whether  what  passed  between  the  parties  amounted  to  a  war- 

anty  or  not  is  a  question  for  jury,  104 
unless  language  used  has  a  fixed  or  technical  meaning,  104 
questionfor  jury  isnot  as  to  intent,  but  as  to  fact  of  wairanty,  104 
intent  to  warrant  may  be  inferred  from  words  used,  the  circum- 
stances and  subject-matter,  104 
question  whether  express  warranty  was,  or  was  not  made,  is 

one  alone  for  jury,  104 
representations  as  to  kind  and  quality  of  article  sold  on  which 

vendee  relies,  and  is  known,  and  intended  by  vendor  to  rely, 

the  article  not  being  present,  such  representations  amount  to 

a  warranty,  104 
use  of  words  descriptive  of  quality  in  sale  note  of  flour  amount 

to  a  warranty,  104 
use   of  words,   "goori    milling  Hour,''  constitutes  a  warranty  of 

quality,  104 
so  of  flour  in  barrels  that  it  is  in  quality  superfine,  105 
of  fruit,  that  it  was  first  class,  105 
of  oil,  that  it  was  prime  winter  oil,  105 
of  wool  in  sacks,  quality  being  marked  on  sacks,  105 
an  agreement  to  protect  the  sale   from  infringement  construed 

as  a  warranty  that  article  sold  was  not  an  infringement  of  any 

patent,  105 


190  Index. 

Warranties,  Express — Continued. 

representations  as  to  fitness  of  thing  sold  for  a  particular  pur- 
pose, intended  as  part  of  contract  and  relied  upon  by  vendee, 

amount  to  a  warranty,  105 
as  in  sale   of  hay    elevator  that  it  would  work  in  all  kinds  of 

hay,  grain,  straw,  and  other  grass,  105 
of  machinery  ordered  for  a  special  purpose,  105 
of  goods  to  be  manufactured  to  correspond  in  quality  to  certain 

other  goods,  105 
of  material   to  be  equal  in  quality  to  any  brand  of  the  same 

material,  105 
misrepresentations  as  to  character  or  condition  of  article  made 

to  influence  the  bargain,  and  having  that  effect,  are  equivalent 

to  warranties,  105 
whether  made  innocently  or  fraudulently,  105 
whether  inserted  in  contract  or  not,  105 
representations  amounting  to  warranty   not  deprived  of  that 

character   by   fact   that   they   were    false    and    fraudulently 

made,  105 
transaction  can  not  be  characterized  as  a  warranty  and  a  fraud 

at  the  same  time,  105 
warranty  may  arise  by  designating  goods  in  bill  of  parcels  by 

name  well  understood,  106 
by  a  reasonable  and  established  custom  or  usage  of  trade,  106 
by  reference  to  a  printed  warranty  contained  in  a  circular,  106 
any  thing  may,  by  contract,  be  made  the  subject  of  sale,  106 
but  a  warranty  of  title  in  bill  of  sale  is  an  exclusion  of  all  other 

warranties,  106 
can  not,  however,  be  fairly  construed  to  intend  an  exclusion  of 

implied  warranty  of  soundness,  106 
warranty  may  be  verbal  or  in  writing,  106 
may  be  made  while  parties  are  in  treaty  for  sale,  106 
although  sale  does  not  take  place  until  some  time  afterward,  106 
may  be  made  at  close  of  sale,  106 

if  made  after  contract  of  sale  is  completed,  it  is  inoperative,  106 
unless  there  is  some  new  consideration,  distinct  from  that  of  the 

sale  to  sustain  it,  106 
agent  authorized  to  sell  may  warrant,  106 

notwithstanding  any  private  instructions  unknown  to  vendee,  107 
joint  owner  not   bound  by  false  representations  or  warranty  of 

other  joint  owners,  107 
but  where  joint  owner  of  property  authorized  to  sell  warrants, 

other  joint  owners  bound  to  contribute  to  the  loss,  upon  fail- 
ure of  warranty,  107 
What  does  not  amount  to  a  warranty — 
mere  aflBrmation  that  thing  is  good  or  sound,  108 


Index.  191 

Warranties,  Expkejjs — Cmtinurd. 

gencnil  praise,  commendation  or  beliof,  108 

representation  made  in  course  of  negotiating  contract  of  sale  after- 
ward f>mitled  from  written  contract,  I  OS 

parol  evidence  not  being  admissible  to  add  a  warranty  to  a  written 
contract  of  sale,  lOS 

written  warranty  gratuitously  given  after  the  sale  will  not  super- 
sede an  oral  one  given  at  time  of  sale,  109 

statements  in  circulars  can  not  be  relied  upon  as  a  warranty,  109 

warranty  as  to  quality  not  a  warranty  of  value,  109 

statements  as  to  price  not  jealously  watched  in  law,  109 

representations  may  relieve  vendee  from  use  of  care,  caution,  and 
observation  required  if  not  made,  109 

but  obvious  defect  is  not  cured  by  warranty,  109 

same  prirtciple  should  apply  in  case  of  false  representations,  109 

if  representations  prove  to  be  utterly  false,  that  will  not  amount 
to  a  warranty  in  itself,  109 

for  jury  to  say  whether  representations  were  fraudulently  made, 

.    109 

all  representations  made  at  time  of  sale  do  not  amount  to  a  war- 
ranty, 110 

they  must  have  been  relied  on  by  vendee,  and  understood  by  th«» 
parties  as  an  absolute  assertion,  110 

not  the  expression  of  an  opinion,  110 

mere  "  dealers'  talk"  will  not  amount  to  a  warranty,  110 

or  representation  that  plow  stock  would  sell  well,  1 10 

statement  that  co.st  of  goods  would  amount  to  a  certain  sum,  110 

description  of  iron  as  mill  iron,  110 

description  of  tobacco  as  good,  first,  and  second  rate,  110 

each  held  mere  expressions  of  opinion   not  amounting  to  a  war- 
ranty, 110 

use  of  words  approved  standard  quality,  110 

and  blue  vitriol  sound  and  in  good  order,  110 

held  not  to  raise  an  express  warranty,  110 

having  been  used  as  a  commercial  designation,  111 

designating  merchandise  in  bill  as  particular  kind  imposes  no  ob- 
ligation as  to  quality.  111 

failure  to  deliver  quality  mentioned,  is  a  failure  of  contract,  not  of 
warranty,  111 

express  warranty  of  quality  excludes  implied  warranty  of  fitness 
for  intended  purpose.  Ill 

public  officer  making  an  official  sale,  makes  no  warranty,  unless  by 
express  contract.  111 
Effect  of  a  warrant'/ — 

article  not  being  as  warranted,  vendee  may  return  it,  112 


192  Index. 

Warraxtiics,  Expkf.s? — Continued. 

or  offer  to  leturu  it  witliin  a  reasonable  time  where  the  time  is  not 
fixed  by  contract,  112 

or  may  retain  it  and  recover  damages  for  breach,  1 12 

may  by  taking  express  warranty,  be  relieved  of  oljligalion  to  re- 
turn the  property,  112 

and  still  hold  vendor  responsible  for  deficiency,  112 

vendee  can  not  avoid  payment  by  exercise  of  an  arbitrary  opinion, 
112 

defect  must  be  such  as  to  amount  to  a  breach  of  contract,  1 12 

retention  of  goods  after  time  limited   renders  vendee   liable  for 
price,  1 1 3 

express  warranty  extends  to.  all  defects,  113 

warranty  of  soundness  may  cover  patent  defects,  113 

examination   and   appropriation    of  warranted   articles  is  not  a 
waiver  of  the  contract,  113 

vendee  not  bound  to  rescind  on  discovering  a  breach,  1 13 

may  recover  damages  for  breach,  1 13 

in  the  sale  of  material  to  be  manufactured  into  articles  of  mer- 
chandise, vendee  not  bound  to  apply  tests  before  using,  113 

if  bought  to  combine  with  other  material,  and  part  are  found  de» 
fective,  vendee  may  refuse  to  use,  113 

if  sold  for  particular  use  and  warranted  "  perfect,"  it  means  per- 
fect for  intended  use,  1 14 

"to  satisfy  trade,"  meaning  of,  114 

obligations  of  express  warranty  are  concurrent,  114 

yet  obligations  may  be  waived,  1 14 

failure   to   insist   on    payment   for  breach   of  warranty  will    not 
amount  to  waiver,  114 
Breach  of  warranty,  and  rescission — 

latent  defect  which  develops  into  a  serious  injury  is  a  breach  of 
warranty,  115 

as  in  sale  of  a  soda  fountain  defective  in  construction,  115 

if  article  is  to  be  set  up  and  operated  in  a  certain  way,  it  must  so 
be  operated,  115 

one  seeking  rescission  because  of  fraud  must  offer  to  rescind  on 
discovery,  1 16 

must  offer  to  return  the  consideration  or  thing  received,  116 

unless  it  be  worthless,  116 

and  notify  vendor  of  election  to  rescind,  116 

if  vendee  be  resident  of  foreign  state,  must  give  notice  through 
post-office,  116 

right  to  rescind  may  be  deemed  waived,  116 

keeping  property  an  unreasonable  time  without  objection  amounts 
to  a  waiver,  116 


Index.  193 

Wakrantiks,  Express — Continued. 
Whcyi  action  lies  for  brcacli — 
money  may  be  recovered  paid  for  goods  which  prove  to  be  diflfer- 

ent  from  warranty,  if  vendee  offer  to  return,  117 
right  of  action  arises  irrespective  of  fraud  of  vendor,  117 
if  property  is  of  any  value,  vendee  must  return,  or  offer  to  return 

it,  117 
if  vendee  sues  for  breach  of  warranty,  he  thereby  affirms  the  con- 
tract, 117 
acceptance  of  goods  under  an  express  warranty  does  not  preclude 

action  for  breacli,  117 
though  a  portion  of  goods  may  have  been  used,  117 
notice  on  bill  requiring  all  claims  for  damages  to  be  made  imme- 
diately will  not  avail,  117 
payment  of  price  after  discovery  of  defect  will  not  prevent  action 

for  damages,  117,  118 
to  maintain  action  for  breach  of  warranty  of  title  vendee  need 

not  have  waited  to  be  dispossessed,  118 
judgment  against   vendee   for  conversion  of  property  need    not 
have  been  paid  before  action  on  covenant  of  warranty,  1 18 
When  action  does  not  lie  for  breach — 
reasonable  compliance  with  conditions  precedent  is  essential  be- 
fore warranty  can  be  enforced,  118 
chancery  has  no  jurisdiction  to  decree  relief  on  a  warranty,  119 
where  vendee  fails  to  notify  vendor  of  defects,  or  sells  the  goods, 

he  is  deprived  of  his  remedy  against  vendor,  119 
if  vendee  puts  machinery  in  operation,  knowing  it  to  be  defective, 

he  is  not  entitled  to  damages,  119 
where  vendee  directs  how  machine  shall  be  constructed,  vendor  is 

not  liable  for  defective  operation,  119 
nor  is  he  liable  for  want  of  parts,  119 

if  warranty  be  for  a  year,  no  action  can  be  maintained  without  no- 
tice of  breakage  and  failure  to  remake,  1 19 
no  action  maintainable  upon  parol  warranty  where  there  is  a  writ- 
ten one,  1 19 
nor  upon  a  warranty  made  after  the  contract  of  sale  had  been  en- 
tered into,  119 
without  a  new  consideration  to  supjjort  it,  119 
Measure  of  damages — 

is  difference  between  value  as  warranted  and  as  it  actually  proves 

to  be,  120 
purchase  price  is  prima  facie  value  as  warranted,  120 
vendee  may  resell,  and  recover  loss  and  all  proper  expenses,  if 

vendor  refuse  to  rescind,  120 
in  action  for  breach  of  warranty  of  title,  damages  can  only  be  re- 
covered for  actual  loss,  1 20 
13 


194  index. 

Waruaxties,  Express — Continued. 

no  special  form  of  pleading  necessary,  120 

in  action  for  breach  of  warranty  in  sale  of  machine,  evidence  of 
cost  to  supi)ly  defect  is  admissible,  120 

expenses  in  trying  to  make  it  work  are  recoverable,  120 

in  case  of  sale  of  plantain  seed  for  clover  seed,  measure  of  dam- 
ages would  be  diflference  in  value  of  seed  and  injury  to  land, 
121 

prospective  profits  can  never  be  considered,  121 

expenses  in  preparing  seed  for  sowing  have  been  recovered,  121 

rule  in  sale  of  burglar  proof  safes,  121 

in  sale  of  material  for  manufacturing  purposes,  difference  between 
value  of  defective  article  and  value  if  made  from  the  material 
as  warranted,  is  measure  of  damages,  122 
Xgricultural  implements — 

warranties  of,  may  be  oral  or  written,  122 

must  be  made  a  part  of  contract,  122 

if  printed  on  back  of  contract,  becomes  a  part  of  same,  though 
blanks  are  not  filled  out,  123 

and  signed  only  by  printed  name  of  vendor,  123 

delivery  by  agent,  authorized  to  make  sales,  of  a  printed  warranty 
is  sufficient,  though  not  countersigned,  123 

provisions  in  contract  executed  in  duplicate,  limiting  authority  of 
agent  to  change  warranty,  is  notice  to  vendee,  123 

written  warranty  excludes  evidence  of  oral  warranty  either  in  sub- 
stitution or  addition  thereto,  123 

evidence  of  fraud  competent  to  show  that  written  order  never 
became  operative,  123 

representations  that  machine  would  do  good  work  do  not  amount 
to  a  warranty,  123 

in  action  upon  warranty,  vendee  must  show  in  what  particular 
machine  failed,  123 

can  not  rescind  without  proving  that  machine  was  not  as  war- 
ranted, 123 

evidence  of  how  other  similar  machines  worked  not  admissible,  124 

unless  fault  in  plan  or  design  of  construction  be  at  issue,  124 

notice  of  failure  not  necessary,  unless  provided  for  in  contract, 
124 

notice  required  if  contract  provides  for  rescission,  on  failure  to 
comply  with  warranty,  124 

time  of  trial  being  limited  to  one  day,  vendee  must  show  diligence 
and  care  in  operating,  124 

if  cutting  five  acres  was  to  be  conclusive  evidence  of  fulfillment 

of  warranty,  it  is  not  material  when  done,  125 
if  contract  provided  for  notice  of  failure,  notice  must  be  given,  125 
warranty  of  self-binder  covers  binding  and  cutting  apparatus,  125 
of  combined  machine  covers  reaping  and  mowing  apparatus,  125 


Index.  195 

Warrantiks,  Express — Continued. 

and  vendee  is  not  bound  to  give  notice  of  defect  until  trial  of 
both,  125 

keeping  machine  during  harvest  without  notice  of  defect  may  be 
deemed  conclusive  evidence  of  fulfillment  if  so  provided  in  con- 
tract, 12') 

harvest  means  usual  harvest  season,  125 

keeping  machine  after  notice  of  defect  is  not  conclusive  evidence 
of  fulfillment,  126 

if  testing  time  be  extended,  notice  of  defect  must  be  given  at  end 
of  extended  time,  126 

notice  can  not  be  waived  by  agreement  of  sub-agent  to  give  the 
notice,  126 

oral  notice  to  agent  who  happened  to  be  in  vicinity  not  sufficient, 
126 

voluntary  examination  by  agent  and  attempt  to  repair  held  to  be 
actual  notice,  126 

presence  of  agent  when  machine  broke  down  held  to  be  actual 
notice,  126 

if  friendly  assistance  in  repairing  is  by  contract  required  of  ven- 
dee, he  must  comply,  126 

if  return  of  defective  machine  is  provided  for,  there  must  have 
been  a  substantial  compliance,  126 

keeping  machine  beyond  time  limited  for  trial  will  prevent  re- 
scission, 126 

no  limit  provided,  retaining  machine  any  considerable  length  of 
time,  will  estop  rescission,  127 

giving  note  for  price  of  machine  does  not  prevent  action  for 
breach  of  warranty,  127 

giving  of  notes,  or  collateral  security,  or  part  payment,  will  not 
amount  to  waiver  of  defects  where  vendor  at  time  promises  to 
repair,  127 

but  execution  of  renewal  notes  have  been  held  presumptive  evi- 
dence of  waiver,  127 

if  vendee  examine  machine,  and  knew  of  defects  at  time  of  pur- 
chase, he  can  not  afterward  rescind,  127 

measure  of  damages  is  diflference  in  value  of  machine  as  repre- 
sented and  as  it  actually  proves  to  be,  127 

purchase  price  prima  facie  its  value  as  warranted,  127 

though  amount  of  damages  not  limited  by  priee,  127 

expenses  of  reasonable  changes  to  make  machine  work  may  be 
shown,  127 

but  not  time  and  expenses  incurred  in  experimenting  after  ma- 
chine proves  defective,  128 

injury  to  grain  by  delay  in  harvesting  not  element  of  damages,  128 


196  Index. 

Warranties,  Express — Continued. 

evidence  of  working  of  machine  for  several  harvests  admissible 
to  show  its  intrinsic  defects,  128 

expenses  of  counsel   may  be  recovered  as  damages,  where  they 
are  a  legitimate  consequence  of  vendor's  wrongful  act,  128 
WHEAT— 

may  be  sold  and  delivered,  price  to  be  determined  by  quotations 
upon  a  day  to  be  fixed  by  vendee,  6 

vendor  entitled  to  pay,  notwithstanding  destruction  of  wheat  be- 
fore day  named,  6 

contracts  for  sale  of,  within  the  statutes  of  frauds,  12 

measurement  governed  by  custom  in  port  of  New  York,  31 

employment  of  measurer  is  a  substantial  compliance  therewith,  31 


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